The 2020 Landslide

Voters Turn Out to Throw Them Out


            The 2020 presidential election is coming to a cliffhanger conclusion. The turnout of 155.5 million voters, or 66% of the voting-eligible population, is the highest in over a century ‒ a modern record.

            In 2020, voter turnout rose 13.7% from four years earlier. That means for every seven people who voted in 2016, eight voted in 2020. An extra 18.7 million voters went to the polls. (Just for comparison purposes, Kennedy's entire vote total in 1960 was 34 million votes.) It was a very close election. Biden's 5,825,046 popular vote margin came almost entirely from California's 5,062,987. So Biden carried the country outside of California by 762,059 while Hillary lost it by 1.4 million. Nevertheless, Trump lost decisively, as is demonstrated by the geographic distribution of the four states whose narrow margins determined the election: Georgia in the east on the Atlantic coast, Wisconsin in the midwest on the Great Lakes, and Arizona and Nevada in the west, landlocked; a nice triangle covering the whole country. This distribution shows the election was not a fluke. (See The Five Crucial Geographic Regions Needed to Win the Presidency -\2014\Gulf Coast States.htm). They turned out to throw them out.

            Everyone lost.  Donald Trump was defeated for re-election while the Democrats lost seats in the House of Representatives (Nancy Pelosi will have to step down as Speaker) and failed to take control of the Senate.  The election was close, both in the individual states and in the nation as a whole.

            Less than 80,000 votes separated the winner from the loser in Wisconsin, Georgia, Arizona, and Nevada. That means that the election was decided by 1 out of every 2,000 voters nationally, or, to be more modest, 1 out of every 163 voters in Georgia, Arizona, Nevada, and Wisconsin.


Trump Refuses to Concede

            The punditry and Democrats are all in a lather that Trump is refusing to concede the election. He is performing a valuable service in public education. If there's one thing I've learned in fifty years of analyzing elections is that it's a good idea to wait until all the votes are counted before deciding what happened.

            People are amazingly ignorant about how our government works. Presidential elections are decided by the electoral college. People vote for the electors in each state and the District of Columbia on Election Day, which was November 3, 2020.

            The election results are then certified by the states with different rules for each. First, every one of the 3,143 counties must certify the results of the vote, which takes about a week. Then the states must certify, which takes about a month.  The electors then meet in their respective state capitals on December 14 to cast their ballots. Electors cast two ballots, one for president and one for vice-president. Some of the electors vote secret ballots. The ballots are then sent to Washington to be opened and counted before a joint session of Congress on January 6, 2021. Then, the winner is announced, and the election is over, unless no candidate receives a majority of the electoral vote.

            The election is not over when it is called by CNN or the Associated Press. It is not over when the loser concedes. It isn't over until the ballots are counted on January 6. The vote count takes two months, not just this year, but every four years.

            So, by refusing to concede and filing baseless legal challenges, Trump is forcing people to pay attention to the technical details that they usually ignore or think unimportant. And this is not an academic exercise. Control of the Senate must still await two runoff elections in Georgia on January 5.

            So, far from being condemned, Trump should be thanked for catalyzing this crucial lesson in civics. Of course, Trump can't concede as long as he's trying to steal the election. And why shouldn't he try? George W. Bush did it twenty years ago.


The Danger of Misunderstood Deadlines

            All the rules and regulations in election statutes are designed to achieve four goals: to create a level playing field for all candidates, to provide timely benchmarks, so the voting proceeds smoothly, to ensure people vote only once, and to get an accurate count. Every Election Law is basically nothing but stipulations and deadlines.

            There are deadlines for qualifying for the ballot, requirements for how many signatures are needed on nomination petitions, deadlines for registering to vote, for challenging a candidacy, for printing ballots, for sending out sample ballots. Even the point size of the lines separating candidates' names on the ballot are spelled out in the law‒ as little as possible is left to chance or discretion when it comes to elections.

            President Trump's campaign is filing a blizzard of lawsuits designed to undermine people's confidence in the election and persuade his base that he lost because of fraud. The strategy is to use lawsuits to cast doubt on the integrity of perfectly normal election practices. The strategy is partially based on their ignorance of how elections work. Election Law is a specialized, poorly paid area of the law. It can't be learned in fifteen minutes. Most of Trump's lawyers clearly don't understand the law.

            For example, Trump has alleged in several states that his poll watchers are not being permitted to examine the ballots. That's right because poll watchers are not permitted to examine the ballots. Poll watchers are permitted to watch others examine the ballots. That's what watch means. You watch with your eyes, not with your hands. The poll watchers can and did sit in the room to watch what's happening. They may not interfere with the count. And partisans are not permitted to come in contact with or anywhere close to the ballots. After the election is certified, if fraud is claimed, they may petition a judge for access and, upon making a reasonable case, may be allowed to examine every ballot individually. But, until the vote is certified, only election officials are allowed to handle the ballots. So, most of Trump's cases are being dismissed. But that doesn't matter because their purpose is public relations and to make his supporters think there is still a chance, so they will donate money to help him retire his campaign debt. Other cases have more serious consequences.

            As part of President Trump's attempt to challenge the results, his campaign has filed a federal court case against Kathy Boockvar, the Secretary of the Commonwealth of Pennsylvania, to stop her from counting some ballots.

            The Trump campaign wants to prevent the ballots from being counted because, under Pennsylvania law, mail-in ballots can be "cured" by November 9, meaning voters can correct clerical errors on already submitted ballots. In 2016, about 250,000 people voted by mail in Pennsylvania. In 2020, the number jumped to 2,800,000, more than ten times the number four years earlier. So, on November 1, two days before the election and with the county clerks inundated with an unprecedented flood of mail ballots, Kathy Boockvar, to give the clerks more time, extended the deadline for voters to correct errors by three days, to November 12.

            The Trump campaign objected to the counting of the admittedly valid ballots that were corrected after November 9. In response to their complaint, the Secretary of the Commonwealth segregated these untabulated ballots that had been postmarked by November 3, pending resolution of the issue in the state courts. The Trump campaign went to Federal court, as they had in state court, alleging that Boockvar exceeded her authority and that only the legislature could extend the deadline. Supreme Court Justice Samuel Alito issued an injunction without consulting any other justices, ordering the Secretary of the Commonwealth to do what she was already doing as directed by the Pennsylvania Supreme Court, setting aside the late ballots. Trump and Alito are looking for, at best, ways to get the issue into federal court, or, at worst, creating the appearance of impropriety in Pennsylvania.

            To people who know nothing about elections or election law, this dispute may seem reasonable. But ask yourself, what is the purpose of having a deadline after the election for counting uncontestedly valid votes? Isn't the purpose of the election to count all the votes accurately no matter how long it takes, or is it a contest to see who can count them the quickest? And if some don't get counted because of administrative inefficiencies or other problems, well, is that just too bad for the voter?

            Pre-election and post-election deadlines have two completely different purposes that only election clerks or lawyers with decades of election experience would know.

            The post-election deadlines are hooks for candidates to use to compel officials to perform their duties. If there is a power outage, a hurricane, or a flu epidemic that prevents enough board workers from counting all the ballots before a deadline, a judge will routinely extend the time in the interest of the paramount object of elections, the accurate and complete tally of the votes.

            But what if a county clerk is supporting a candidate for sheriff and the vote is close, and she or he knows that the ballots from a certain town will cause her candidate to lose, so he or she decides not to count them? That''s what the deadline is for. It's for the about-to-lose candidate to   be able to go into court and ask for the votes to be counted, saying the votes are supposed to be counted by November 9, but they haven't been. The deadline is the reason a judge can use to compel the election official to do her or his duty. The law can't just say, "The clerk shall count all the ballots." There needs to be a verifiable standard in the law enabling someone to judge whether or not the ballots have been counted.

            The Trump campaign also asked a judge to throw out the entire Pennsylvania election because while some counties notified voters of deficiencies in their ballots that needed fixing, other counties did not. Those counties could have notified the voters but chose not to. Trump's campaign claimed this was a violation of the equal protection clause of the Constitution.

            Elections are supposed to be about counting all the valid votes. In 2000, the election was decided by stopping the vote count. In Florida in 1998, there were 200 or 300 fraudulent mail ballots in the Miami mayor's race. As a result, a judge threw out all 5,000 absentee ballots and awarded the office to the loser on the basis of the machine vote alone. Trump may be trying to repeat that feat, but he miscalculated by carrying Florida.

            The history of voting in the United States is the story of rules designed to prevent others from voting: people who didn't own property, slaves, and women. Once enfranchised, people have been creative in finding administrative devices to disempower others: Jim Crow laws, literacy tests, poll taxes, annual registration, and voter ID laws. So, it is not surprising to find Trump trying to overturn the results of the election. Fortunately for the voters, the   United States has had 200 years to perfect the procedures for casting and counting ballots. Finding his attempt to invalidate mail-in ballots faltering, Trump has now turned his guns on the voting machines. Basically, Trump is putting the election system in the United States through a much-needed stress test. When it is finally over, all the people who have been claiming, baselessly, that voting machines can be hacked and that paper ballots are frauds should be silenced for a decade or two. It is crucial to the survival and prosperity of our nation that the votes be accurately counted.


The Electors and Beyond

            Once the results have been certified on the state level, Trump will probably start calling on the Democratic electors to defect to him, the "real" winner. Electors are free to vote for whomever they want in most states. Some levy fines if they don't vote for the winning candidate; others remove them before the fact. Asking electors to defect should drive the Democrats and media cognoscenti into paroxysms of anger and dismay. But at least millions of people will understand, for the first time, the mechanics of how presidents are elected.

            Furthermore, Trump will pardon everyone in sight, including himself, which will complicate all the pending prosecutions and legal suits that await him after leaving the White House. They will have to wait for a Supreme Court decision on the legality of his self-pardon. This is probably the reason why getting Amy Comey Barrett onto the court before he left office was so important to Trump.

            As Trump tries to overturn the results of the election, the fact that he has to do in three or four different states in different sections of the country shows that the Electoral College, the decentralized mechanism designed to keep the selection of the president in the hands of the states and out of the hands of the federal government itself, is a crucial and important device for protecting democracy.  

            While Trump's conduct after the election is a needed lesson in civics, it is also an inside look at how he thinks and operates and why he lost his re-election bid.

            Great leaders uniformly have one character trait. They are able to listen to bad news. Leaders who punish the bearers of bad news preside over organizations that won't bring it. Therefore, that leader gets blindsided by events.

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Contact: Joshua Leinsdorf