24 September 2020
The Doors Open
Chads and worse.
By J.R. Thomas
Eh? What? What doors? The doors to the polling stations, of course. Not literally; the polling machines won’t be switched on until 3rd November, no falling chads* yet (remember Florida 2000, when they didn’t, but hung on?). But it is possible in some states now to cast postal votes. This may appeal to some voters who very clearly know their Presidential choice. Most folks will wait because that is more exciting and because, well, you never know, posting their envelope nearer to polling day or on the actual day, getting their boots and waterproofs out for the journey to the polling booths in the good old fashioned way.
But let’s just return to the hanging, or falling, chads and consider the latest allegations to hit the President. Albeit allegations mostly triggered by Mr Trump himself, either speaking carelessly, or to stir things up a bit (do not under-estimate the Presidential tendency to do that sort of thing). In 2000, George W Bush versus Al Gore, the state of Florida was blest with some old voting machines which worked on punched card technology. Don’t laugh; it was the latest thing in its day, but by the year 2000 their time was past. In Florida the view was that there was no point throwing out perfectly good machines that had had little use. So the voters pushed and pressed and swung the handles and the Florida result was, near as goddam it, a draw. Which mattered because across the rest of the USA Gore had won a narrow victory, narrower still in the Electoral College. In Florida some 6 million votes had been cast; and Bush was the winner by 537 votes. This gave him all of Florida’s Electoral College votes and made Mr Bush President-elect. “Not so fast” said Mr Gore’s advisory team, after a session with stronger reading spectacles and large magnifying glasses, “Hang on!” because what they spotted was that the chads were doing just that. Those pesky little bits of card, which if punched out signified for Gore rather than Bush, were in some cases not detached, or merely indented, and it was not clear that the voter had pressed hard enough for Gore. Or maybe had not pressed the Gore button at all.
That is a grotesquely over-simplified history of what turned into a major constitutional issue, and ended up in the Supreme Court, with neither side being willing to concede victory. The legal arguments were endless and ingenious, and there are many relevant learned articles and books for those riveted by constitutional law, but as we know, in the end Bush won.
Well, say the modern pundits, suppose that happened now? Gore had won the national popular vote by about half a million votes, but Al abided by the decision of the Supreme Court on Florida, and no doubt Bush would have done, had the verdict gone against him. But would Trump?
Mr Trump caused apoplexy in some circles earlier in the summer when he suggested that if the result of the November vote was not clear, then it was the Presidential duty to hang on until it was. The media leapt immediately to the barricades, suggesting that Donald intended to make himself President for life, introduce martial law, fiddle with the constitution, and all sorts of other wicked things to stop Joe taking up his rightful job. That was not what the President seemed to mean (the media may have course have access to the inner recesses of his mind, a privilege not accorded to the Shaw Sheet); he appeared to be talking about postal voting being open to fraud. That issue comes up at every election (in the UK also) and was examined closely in the Florida dispute in 2000, revealing that there were numerous instances where postal votes might have been manipulated.
The most simple form of fraud involves persons other than the registered voter filling in the postal paper, perhaps for elderly neighbours, but not in the way they intended, proceeding via local officials organising for certain persons, or areas, not to get their voting papers delivered on time, up to, on polling day, voters of districts favouring one party finding major road works blocking their route – organised by a local official of the opposite persuasion. And many variations thereon.
Certainly, in a very narrow result the loser may want to have all these things looked at, as Mr Gore did in 2000. Mr Trump observed that the number of applications for postal votes has gone up dramatically this summer, probably due to Covid-19, and that has been particularly so in Democrat leaning areas. That could mean a challenge from Republicans; it could also mean a challenge from Democrats if it looks as though postal votes may have been lost or delayed. That does not mean an attack on the constitution, or that the army will need to top up the fuel in their vehicles; such matters go through a legal process and may end up in the Supreme Court as the Florida result did in 2000. But there is one factor worrying both sides and that is the electoral college. This was a fudge inserted in the 1787 constitution to try to avoid local pressures. The voters actually vote for their electoral college representatives – 538 of them – and they vote for the Presidential candidates. But in some states the electoral college reps do not legally have to vote for the winner in their state, and just occasionally, they don’t. Up to now that has never affected the result (not least because most states have a ‘winner takes all’ system and that amplifies in the college the vote of the public winner). But in a tight result it could matter; and it is a system potentially open to manipulation in a highly politicised environment. Such as now.
Also increasingly politicised is the Supreme Court. Last Friday saw the death, aged 87, of the oldest member of the Court, Ruth Bader Ginsburg. Justice Ginsburg was an intellectually formidable lawyer of the old fashioned type, a left leaning product really of the Kennedy era, who became more formidable and more left leaning during her 27 years as a Supreme Court justice. A Bill Clinton appointment, she hoped to see Hillary Clinton as President, and hung onto her Court seat in that hope, rejecting suggestions that she resign during President Obama’s term to enable him to appoint a younger and leftish justice in her place. Because she did not, by her death she has perhaps given the chance to President Trump to appoint the third Supreme Court judge of his four year term. If he does – and he has said he will – there will be a Supreme Court of six Republican appointed justices and three Democrat appointments, a clear conservative majority. That will set a certain tone on social judgements in forthcoming years, and could be very relevant in the event of a tight and disputed election. It will not be easy to ram an appointment through so quickly and there will be attempts to prolong the hearings process. Mr Trump has said that his nominee will be acceptable (and female) and will be announced this week. With a Republican majority in the Senate it should just be possible to get the nomination approved.
Mr Biden is naturally crying “foul”, and certainly recent precedent is that such appointments are not made so close to a Presidential election. That argument, deployed by Senate leader Republican Mitch McConnell persuaded Mr Obama not to appoint in 2016 – but he did not have a majority in the Senate. Now the current Senate leader must opine once more on the same matter. And who is he? The very same Republican Mitch McConnell.
- a “chad” is what is left of the voting slip after a hole has been punched in it to show the voter’s preference; “hanging chads” occur when the punched piece remains attached and the dispute in Florida centred on how these slips had been counted.
