After the voting ends: “It ain’t over ’til it’s over”

 

“It’s déjà vu all over again,” said Yogi Berra, leading American philosopher and Hall of Fame baseball player.

The rushed appointment of Amy Coney Barrett to the U.S. Supreme Court shows that’s exactly what President Trump wants. In 2000, a partisan Supreme Court decided the election, picking Republican George W. Bush over Democrat Al Gore. Could it happen again?

In its 2000 decision, the Court implied that it would not routinely override state management of federal elections, as the Constitution provides.

That case involved constitutional violations in Florida’s ballot counting. Now the issue may be mail-in voting in many states. The Trump campaign must show more than the possibility that mail-in ballots permit fraud; it would have to show evidence of many actual cases of fraud.

In view of Bush v. Gore, most states have tightened their voting systems, making them less vulnerable to such complaints. This week, most justices said they would not displace state control, though Kavanaugh used Trump’s rhetoric against a lengthened count.

How could the post election play out?  Much depends on the exact outcome. If either candidate wins a landslide victory, there would be little incentive to challenge the results in multiple states.

Under the Constitution, the states run their own presidential elections. The first appeal from a state’s handling of the balloting would be to state election officials and state courts.

The U.S. Supreme Court would not be the court first used, because it must hear such cases on appeal. Bush v. Gore was decided on appeal from the Florida Supreme Court.

If no constitutional standard had been violated, the Supreme Court should not act as if it were a state court. Facing a dispute that could not be readily resolved, a state might struggle to choose its electors. That happened when the Court stepped or overstepped into the Florida case.

If the national result were nearly a tie, there might be challenges in several states not just one. The Trump campaign appears to believe that the outcome will be close, and it is prepared to challenge in a number of states. Presumably, the Biden campaign is also ready for a court war.

But courts need not determine the result. The Constitution contains rules for electing the president when neither ticket has the required 270 votes.

At noon on January 3, 2021, the new Congress is seated. At noon on January 20, the terms of Trump and Pence end. No exceptions are possible. The new Congress could try to adopt a law allowing for an acting president, but that’s highly unlikely.

The new House of Representatives would choose the president. After the 1824 and 1876 elections, the House fashioned political deals and elected the president.

In the House, each state has one vote. All 50 states are equal, and a state’s vote is determined by the state’s representatives, no matter how many or how few. Right now, there are more Republican than Democratic state delegations.

That may partly explain Trump’s focus on Maine’s Second District. If one representative were a Democrat and the other a Republican, the state would be deadlocked. Right now, both districts are represented by Democrats, which would yield a vote for Biden.

In 2000, the Court might have left the decision to the House (where Bush would have likely won), but it managed to find a constitutional question. What would happen now, if a partisan Court simply decided to substitute its judgment for the decisions of one or more states?

Its decision might be accepted by the loser, as Gore did. But, if there were a large popular majority nationally that the Court ignored, a crisis could result. Would the Court override a popular majority as it did in 2000? Maybe not, if it were big enough.

The House might ignore a Court ruling and proceed to its own vote if it produced a different result. President Andrew Jackson rejected a Supreme Court decision, stating it would not be enforced or obeyed. The Court’s decision, favorable to the Cherokee Indians, was ignored by the other two branches.

The House could have the last word. The Supreme Court would be damaged, and the country would be dangerously divided.

Though the three branches are supposedly equal, Congress can determine the Court’s jurisdiction. It could later strip the Court of the power to decide presidential elections. It could enlarge the Court to blunt the conservatives’ power. The justices will be aware of these possibilities.

The outcome may be uncertain unless the election produces a large majority for the winner, putting the result beyond debate. But the media might even find a way of projecting a winner right after the election.

Still, as Yogi famously said, “It ain’t over ’til it’s over.”

 

Voters giving Trump, Biden blank check on foreign policy

 

The winner of the presidential race will get a blank check from the voters on one of the most important issues – America’s relations with the rest of the world.

Foreign policy has been invisible in the presidential campaign. Though not formally scheduled for any debate, President Trump wanted it included so he could attack Biden on China.

Neither candidate has laid out a full foreign policy. It’s all about issues to embarrass the opponent. The media coverage of major events abroad has been slim.

President Trump boosts “America First” often seen as meaning “America Alone.”  No more world leader.

He beats up on China, but craves a trade deal. He sees any unfavorable trade balance with any country as unfair. He urges allies to pay more for their defense, even if that saves the U.S. nothing . In fact, the U.S. military budget grows, mostly for its own sake.

He favors dictators in Russia, Saudi Arabia, Turkey and North Korea. He likes the U.K prime minister but knocks other allied leaders in Canada, Denmark (because she would not sell him Greenland), Germany and France.

His various moves yield no consistent foreign policy and it would likely remain the same. The result and possibly Trump’s intent is a withdrawal from world leadership, leaving the field open for either chaos or China.

Former Vice President Biden would attempt to restore the previous national foreign policy. His goal would be to bring back the American role as world leader, but that may not be possible.

He has pledged to rejoin the Paris climate agreement, though that accord is more an expression of good intentions than an actual commitment. Trump’s rejection of it expressed his opposition to combating climate change. At one stroke, Biden could bring the U.S. back into the community of nations.

When Trump and Hillary Clinton threw out the Trans Pacific Partnership, they thought they were dropping a bad trade deal. They missed the fact that it was really an alliance against China. It continues without the U.S, but Biden says nothing about refashioning it.

How would Biden deal with dictators? Does Saudi Arabia's crown prince continue to get away with orchestrating murder? Is Russia's Putin allowed to meddle in U.S. politics and to counter U.S. interests? Will China get a free pass on building its phony islands to house new military bases?

Does Netanyahu have U.S. support for anything he wants? Does Biden try to restart efforts at least delaying Iran's nuclear weapons development?

Biden cannot merely try to return to the world the way it was before Trump. It's not possible, even if that was all he wanted.

Above all, having elected Donald Trump, the U.S. will never be seen as the leader it was. This is not a question of popularity or personality, but of trust and reliability.

The U.S. was the assumed world leader with many other countries willing to follow its course. For fear of another Trump episode, they will no longer follow so readily.

The world has changed. China has unveiled its desire to share world leadership with the U.S. if not replace it. Right-wing governments have emerged in Europe. Africa is on the move. Middle East countries are becoming less unified in their attitudes toward Israel and each other.

The departure of the U.K. from the European Union will lead to an enlarged role for the Germans and French and reduced British influence.

If you have read this far, you may either be bored or bewildered if all this really matters. So what if a person's view on a single issue like Covid-19, the Affordable Care Act, abortion or guns provides a blank check for whoever is president in dealing with foreign affairs?

One good reason is money. The federal budget, which has an enormous economic impact, is composed of three main parts. One part consists of Social Security, Medicare and similar programs. The second is defense and the third is everything else from the FBI to farming.

Under Trump, military spending has outstripped the third part of the budget. Of course, defense means protecting the homeland. But it begins abroad, not merely at our shores. That makes it part of our foreign policy.

So the U.S. spends a huge amount of money to support a foreign policy we don't have. If you don't like big government spending too much money without good reason, there's where it starts.

America supposedly favors some shared values like democracy. U.S. foreign policy should support values that represent what the public wants. But how do we know that? This year's GOP platform was simply a statement that all we want is whatever the president wants.

After this year's election, it looks like the president gets that blank check.

 

Trump, master of 'whataboutism'

 

America has a bad case of "whataboutism." Here's how it works.

Democrats say: President Trump has completely bungled the coronavirus pandemic.

Trump answers: What about the way Obama-Biden mishandled the swine flu?

Conclusion: The Democrats screwed up the swine flu years ago, making their criticism of Trump's handling of Covid-19 false.

In another case:

Former Vice President Biden: You should condemn white supremacy.

Trump: What about your friends, the liberals and antifa? They are the bigger problem.

Conclusion: The extreme left is worse than the extreme right, so I don’t need to condemn white extremism.

Whataboutism has been around for a long time. It is a slick way to answer a charge with a countercharge, dodging the original criticism. These days with Trump, to paraphrase the old movie line about love, the result is, "Being president means never having to say you're sorry."

The ploy helps people worried by the charge, but who want to justify their continued support. It gets them off the hook, when they can ignore the charge and keep on backing the accused for their own reasons.

Trump who continually plays to his core constituency finds whataboutism a useful tool. Just as important, he may induce other, unwary people to see the original criticism as an unfair attack on him, possibly leading to their support.

Whataboutism has two flaws.

The more obvious problem is that, while the original charge may be true, the countercharge is not true. But it is stated which such conviction and as a balancing argument against the truth, so that it, too, sounds like the truth.

Take the virus debate. Covid-19 has been the cause of death of more than 220,000 people in the U.S. We still have no way of knowing when it will have run its course and how many victims it will ultimately claim. The early, disorganized response to it was left largely to the states.

The 2009 swine flu pandemic took 12,500 lives in the U.S., an impact similar to the annual flu. Under President Obama, there was a federal response from the first outbreak.

Conclusion: Both pandemics were harmful, but not strictly comparable. Certainly the answer to the charge about dealing with Covid-19 was not a countercharge about the earlier, far less harmful and well-managed pandemic.

As for right- and left-wing extremists, Trump fails to condemn white supremacists, who have formed organized militant groups, some supporting him. Biden has condemned extremism on both sides. The FBI states that antifa (short for "anti-fascist") is not a group but a protest movement.

To obscure his failure to use the term "white supremacy," at 29:39 minutes into the presidential debate Trump charged that Biden refuses to say the words "law enforcement." He still makes that charge. Yet twice, at 30:59 and 37:54 into the debate, Biden did use the term.

The second flaw is that, even if Trump were correct, two wrongs don't make a right. Suppose his criticism of Democrats is accurate. While their actions might be worthy of criticism, how does that relieve him of responsibility for his own actions?

If whataboutism were accepted as a political defense, the obvious result would be the elimination of any standards of public behavior. Each act would become a precedent excusing later acts as being no worse. All it would take to start the ball rolling downhill would be the first act.

Here, Trump is the master. He sets new low standards in political behavior unmatched in American presidential history. The risk is that they will become the baseline for more whataboutism.

In his furious response to the vice presidential debate, he asserted that Sen. Kamala Harris, the Democratic candidate, is a Communist. Communism is a bit outdated as the principal U.S. adversary, perhaps showing senior citizen Trump's frame of reference. But it is a serious charge. 

No top-of-the-ticket candidate has ever charged that the opposing national ticket included a Communist. Trump set a new low.

Trump has failed to disclose his tax returns and medical reports, falling below the standards followed by the last eight presidents. This is a new standard without any reasonable justification.

Medical information about the effect of experimental drugs or a mood-altering steroid on a man with the nuclear weapon trigger is important to the public. If they have no effect, tell us. And his health condition could legitimately influence how people vote.

In 2016, he expressed willingness to release his tax returns, though he imposed phony conditions, but he still fights tenaciously to keep them secret even from law enforcement. Did he lie in his first campaign?

His record-setting number of lies has set an impressively low standard for whataboutism. Any future president could lie regularly, while claiming, "What about Trump?"

Elections have consequences: four hidden effects this year

 

When people vote, they pick candidates. That's what elections are all about.

Not really. This year, there are least four hidden elections taking place.

The push to put a new conservative on the Supreme Court before Election Day makes the presidential vote a referendum on that effort, perhaps after the fact. If Joe Biden and a Democratic Senate emerge as winners, they could consider their victory as a mandate to quickly rebalance the Court.

President Trump has pushed his authority to overturn actions by regulatory agencies that are supposed to be independent, making them just another part of his administration. The presidential election could lead to their recovering their lawful, independent powers.

That would mean environmental, banking and many other rules could be recovered. Plus, federal inspectors general could be restored to their independent authority. That is what's just behind the presidential ballot.

Then, there's the Senate. If the Republicans hold on, expect continued roadblocks for the Democrats. If the Democrats gain control, they might use GOP methods. Their judicial appointments could sail through. But more than the courts are in play. All top federal officials are subject to confirmation. 

The big question is whether the Democrats would halt the GOP's ability to kill their bills by ending the filibuster, which now means many bills need 60 votes. If so, they could take advantage of their potential control of government and make major policy changes.

The Senate balance is now in question. Analysts give the Democrats a good chance of holding 51 or even 52 seats out of 100. That would include a Democratic gain in Maine.

Though campaigns focus on issues from health care to taxes, the big issue is which party controls the Senate. On that vote, all senators remain loyal to their party. So, in voting for senator, Mainers and others are really making a broad policy decision on government, more than on candidates' promises on specific issues.

The House of Representatives is a little more complicated. It now has a large Democratic majority, which is likely to be preserved.

If election challenges or inconclusive ballot counting prevent either presidential candidate from receiving the required 270 electoral votes by January 3, the new House could elect the president.

Members vote by state and the single vote for each state is determined by its House delegation. The two Maine House members would have the same weight as California's huge delegation. Today, with two Democrats, Maine would vote for Biden, but the new House would decide.

Right now, despite the Democratic majority, Republicans control most of the state delegations in the House. That gives congressional races in small states, including Maine, particular importance in determining the state majority.

The fourth hidden vote will be for state legislatures. Under the Constitution, state legislatures elected this year will be responsible for redrawing the congressional district lines resulting from the census. In each state, the districts must have the same population.

Some states have moved toward leaving the task to independent, nonpartisan commissions, but many congressional districts are drawn subject to statehouse politics. In states like Texas, political gerrymandering has created incredibly shaped districts, designed to limit the seats held by Democrats or minorities.

Few voters may be aware that their legislative ballots will influence the state's congressional representation. In some states, reapportionment could produce major shifts in the composition of House delegations for the next ten years.  

In Maine, the two congressional districts are far from as compact as possible. They appear to represent a political compromise that gives the Republicans the chance to win a seat. That situation could change as population grows in the southern part of the state. It might take two-thirds of the Legislature to redraw the lines.

Beyond these four hidden votes, another issue surrounds this year's elections – the elections themselves.

Since becoming president, Trump has attacked the security of the electoral system, though he provided no provable evidence that it is vulnerable. Cheating is possible in any human activity. Trump has turned that obvious truth into a claim that, if cheating could happen, it does happen.

With elections stretching back over two centuries, no evidence exists that cheating has been much of a problem. To support Trump's claim, more than mere assertion is required. Otherwise, the intent of the claim is suspect.

If Trump-Pence loses the election, their campaign seems ready to rely on the suspicion the president has created to try to nullify the results.

States should keep good records on the safety of polling places and all types of remote voting and vote counting. The data must be strong enough to quickly persuade a court.

The rest is up to voters. Vote.