Mohan Guruswamy | Will Biden win in US, but Trump still be President?

The American presidential election is possibly the most widely and closely watched electoral contest in the world. Like Americans, most of the world believes that the US President is the most powerful person in the world. A good part of that notion is attributable to the authority conferred by what is generally believed to be a free and fairly won mandate. But American presidential elections are not without controversy. It is widely believed the 1960 elections that saw John F. Kennedy getting elected by a plurality of less that 100,000 votes was because Chicago mayor Richard Daley, an old-fashioned Democratic party boss, with a wide network of friends in the labor unions and organised crime “stole” the election by ballot stuffing. A popular cry in Chicago in those days was “vote early and vote again and again”!

Closer to our times George W. Bush is generally believed to have won in 2000 when a combination of voter fraud, deliberate miscounting and judicial intervention giving him the state of Florida by 537 votes. The state’s secretary of state, Kathleen Harris, who was responsible for oversight of the state’s elections and certification of the results, had also served as a co-chair of the Bush campaign in Florida. Further, Florida governor Jeb Bush was George W. Bush’s brother. Between them they ensured that over 12,000 voters were excluded from the voter list on the grounds that they were all ex-felons. When the Florida Supreme Court ordered a recount in all 67 counties, a conservative leaning US Supreme Court overrode that order and ordered the election be declared. That gave Florida’s 25 electoral votes to George W. Bush, winning him the presidency in the Electoral College 271 to 266. This did not become a point of contention though the popular vote was with Al Gore, who got 48.4 per cent while Mr Bush received 47.9 per cent, losing by over 540,000 votes.

America’s Presidents are, however, are chosen by the Electoral College, a system in which “electoral votes” are assigned to states based on their population and then awarded as a lump sum to the winner of the popular vote in that state -- currently, it takes 270 electoral votes to win. In 2016 Democrat Hillary Clinton took the popular vote by almost 2.9 million votes, with 65,844,954 (48.2 per cent) to Mr Trump’s 62,979,879 (46.1 per cent), but Mr Trump won the Electoral College votes 306 t0 232.

That is why the US Senate’s approval of Amy Coney Barret as a Supreme Court judge and tilting the balance heavily towards the conservatives 6-3 is significant. In 2016, under similar circumstances, the Republican-dominated Senate blocked the appointment of Merrick Garland, Barack Obama’s nominee, a full 10 months before his term ended. Republican majority leader Senator Mitch McConnell then argued the elections were close and the people must decide. This time he argued just the opposite.

Most observers believe like Bush vs Gore, this year’s elections will also end up before the Supreme Court over challenges by a losing President Trump to the huge numbers of postal ballots. Mr Trump has not hidden his views on postal ballots. Time and again he has called them “very dangerous for our country” and “a catastrophe”, even calling 2020 the “greatest rigged election in history”. The US has about 240 million eligible voters. As of Sunday, over 91 million Americans had already cast their ballots. Surveys have also revealed that almost 60 per cent of Democrats prefer to vote by postal ballot, while in sharp contrast only about a quarter of Republicans were willing to do so.

The likely November 3 outcome that worries observers is this: That the voting boxes and machines may very likely reveal an early Trump lead, but as the postal ballots keep getting counted that lead will start whittling away. This will be keenly watched in borderline states like Texas, Georgia and Florida, which had favoured Mr Trump in 2016. The Trump operatives are expected to scrutinise each and every postal ballot and challenge many. It is estimated that close to 1.3 per cent of postal ballots are rejected on various technicalities. This suggests nearly 110,000 rejected postal ballots. Remember, in Florida in 2000, just 537 votes decided the outcome by requiring the Florida electoral votes to go to George W. Bush. This time, hundreds of Trump lawyer operatives have fanned out and the electoral process can expect to get slowed down by the sheer weight of challenges. Mr Trump has been quite blatantly signalling his troops to hobble the postal ballot count.

Postal ballots will have plenty of flaws for the Trump lawyers to seize upon. For instance, if a voter gives a different address, or a different version of his name such as Joe for Joseph or Richie for Richard, or if there is a variation in signature, any one of them can become a ground for dispute. Now here comes the catch. The states are required to finalise the appointment of the 538 Electoral College members by December 8. The Electoral College has to formally meet by December 14 to “elect” the President. The big question now is what next?

The US and even the world is accustomed to choosing the Electoral College by popular vote, but nothing in the US Constitution says it has to be that way. Article II, Section 1 states: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

Republicans control the governorships and state legislatures in Texas, Georgia and Florida. Thus, these states can, in the absence of a popular vote, appoint the electors.

If that happens, given the predicted “red” states voting for him, Donald Trump might very well be deemed to have been elected, or decide he is still the elected US President. The matter will almost certainly have to be resolved by the Supreme Court. But its tendencies are well understood.

Whatever be the Supreme Court’s final decision, that is unlikely to come in time before January 20, 2021 when the US traditionally swears in the new President on the steps of the Capitol in Washington D.C. If that doesn’t happen, the world will have to live with President Donald Trump for some more time.