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Election Dissection

Even if it's not official, Republicans should acknowledge Biden's win

The nation has a new president-elect, Joe Biden. At the same time, there is no official president-elect, because the electoral process itself hasn't yet reached that point.

How can both these assertions be true? And if they are, how are Americans supposed to understand that? Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech is urging us to do?

When it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.

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Election Dissection

Closing arguments: All the president's bedlam

President Trump is talking about "bedlam" — and even "violence in the streets" — if results aren't known on election night. In fact, he is trying to create bedlam where none exists. He's seeking to precipitate enough discord and doubt to cause citizens to disbelieve in the vote-counting process.

There should be no bedlam in the counting of ballots. It's a rather boring process, but it works very well.

For absentee and mailed ballots, election officials make sure that each ballot comes from an eligible and registered voter. That verification is a good thing; it assures the integrity of the election. That's something Trump and his fellow Republicans who are concerned about fraud should be supporting, not bemoaning.

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Election Dissection
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File:Panorama of United States Supreme Court Building at Dusk.jpg ...

The coming Supreme Court showdown that may affect how you vote

There is a collision of two tectonic plates occurring in the world of election law, and it is causing an earthquake in federal jurisprudence on absentee voting.

One of these tectonic plates is the so-called Anderson-Burdick balancing test. This has been the Supreme Court's basic framework for evaluating the general constitutionality of election procedures. Anderson involved the independent presidential candidacy of John Anderson in 1980 and, specifically, his claim that Ohio had an unconstitutionally early deadline for getting on the ballot. Anderson's claim prevailed.

Burdick involved Hawaii's prohibition against write-in votes. (The claim of unconstitutionality lost.) The court in that case built on its Anderson decision. It said that a court must weigh "the character and magnitude of the asserted injury" to First and 14th Amendment rights against the state's interests and justifications for "the burden imposed by its rule."

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