Tomorrow is the day many of us have been waiting for and dreading for nearly four unbearable years. And it seems pretty clear on this Monday morning that the results of the election won’t be known tomorrow night or possibly, heaven forbid, all through November.
The big question in all our minds about the results is, of course, “Will trickery and cheating prevail, or will honesty, the rule of law and tradition win the day?” Will the election somehow be stolen — by Trumpian trolls, a nationwide Russian disinformation blitz, Chinese hackers, the U.S. Supreme Court, armed racist thugs intimidating voters, or the virus? Or will the common-sense gravity of our people anchor us in our deepest, most self-respecting democratic values?
The legal briar patch ahead could be fearsome. More than 300 separate electoral challenges are already in the courts in some 44 states. Both sides have lawyered up as never before. And the whole shebang may come down to sticky controversies over how Electoral College votes are counted by the Senate, or, if there’s a tie, who the House of Representatives would choose for president.
The mudslide of controversy and litigation seems to be poised to slush down on all of us, set off by the slightest tremor of populist rage. And yet, there are millions of Americans who trust and respect their country enough to have already voted, some 71 million of them as of last week.
Tomorrow night’s going to be excruciating, one way or another. How to deal with it? Is it a matter of duck and cover? Is there anything we can actually do beyond voting and lobbying, taking to the streets or spending more money on campaign contributions than we do on food and clothing? Have most citizens over the last four years come to feel so disempowered that all they can do is wince and turn off the news? And what really happens if the election goes “the wrong way” — honestly or dishonestly? Will the whole constitutional roof cave in?
Maybe we can make it a little easier on ourselves by getting up to speed on what small doses of reality are available to us.
Is there anything really basic we should remember? Key dates, key laws and provisions, perhaps? A little history? There’s a lot of scrambling we all have to do to get up to speed.
Despite tomorrow being election day, we are being warned by news agencies that “it is possible a winner will not be known for days as states tally ballots.” We remember it took 37 days for the outcome of the presidential election of 2000 to be decided for all intents and purposes by the Supreme Court. If things go in an orderly way, December 14 will be the day that members of the Electoral College across the country will vote for president. If someone gets 270 votes or better, that’s all it should take. But in our current madhouse environment, the larger the win the less possible contention there could be. On January 6, 2021, God willing, Congress meets in the capital to formally count the Electoral College votes and certify who won. Two weeks later on January 20, the winner is sworn in as president. That’s the way it’s supposed to go. And, of course, if administrations do change because of the election, what could be a tumultuous transition process might unsettle the country even more.
Amendment XII of the Constitution, ratified in 1803, provides for other scenarios. If the President of the Senate counts the Electoral College votes and there is no majority, or, in other words, there’s a tie, the Senate turns over the matter to the House of Representatives who “shall choose immediately, by ballot, the President,” each state having one vote. This should happen before March 4.
The 20th Amendment to the Constitution, ratified in 1933, reduced the period a “lame duck” defeated president could remain in office until the inauguration of the winner, setting the date of January 20, and stipulating that Congress shall reconvene after the election on January 3. This shortened the lame duck period by more than two months.
There’s a chance we’ll hear quite a lot in the news about the Elector Count Act of 1887, described by some commentators as being a law that is “very confused and almost unintelligible,” and one that “invites misinterpretation.” As I read it, the Act deals with potential controversies in the composition of a state’s Electoral College representatives. There may be opposing groups who interpret the election in their state differently, or be appointed politically without taking into account the voter’s wishes. The Act gives Congress “total power over the electoral vote” to solve all controversies.
There’s a good chance, should malign shenanigans prevail, that the Electoral College itself could be abolished at last after this election.
We’ll also be up to our necks in thinking about absentee ballots and early voting because as usa.gov tells us “every state’s absentee voting rules are different.”
And rules, of course, are open to being contested. And contested they will be. When you put together the mix of states’ rights, the Electoral College, electoral amendments and the XIV Amendment guaranteeing equal protection under law to citizens of all states, you have a brew of complications and contradictions that could turn a close election into a nightmare of uncertainty, especially when you top it all off with a pandemic and a partisan and activist Supreme Court willing to stick its nose into just about anything.
If we’re looking for something to depend on tomorrow night, we might not have any farther to look than our own backyard. A website called 270towin.com compiles the voting histories of the various states. Calling New Mexico “one of the most demographically unique states in the nation,” being 49% Hispanic, 37% white, and 11% Native American, the website affirms, “There is truly no other place in the country like New Mexico.” Then it adds that we also are home to one of the nation’s “most reliable bellwether counties” — Valencia County just south of us. “With an unbroken streak going back to 1952, Valencia County has consistently chosen the winner of the presidential election. This is the longest such streak in the country.” If Valencia County is going “my way,” I’ll take solace anywhere I find it tomorrow night.
As of the middle of last week, nearly a quarter of the nation’s population had already cast a ballot. That’s more than half of the total vote in 2016. We could be having one of the greatest voter turnouts in our history. And that’s the great hope of both sides — that the outcome will be unambiguous and undeniable. If it’s not, a monstrous legal grinding could pulverize our optimism, our economy, our domestic tranquility and our way of life. But I’m choosing not to go there yet, choosing to trust our history and our culture that so values the peaceful transfer of power. When you weigh that against the insidious, madcap, volatile present moment, I think you have to trust our tradition, trust that we won’t have another long national nightmare worse than Watergate and trust, as President Gerald Ford said in 1974, that “our Constitution works.”
*Nullius in verba: take nobody’s word for it
Thank you Mr. Price.
Certainly will tell us “what time it is ” now in america – if this becomes the first time in 70 years that Valencia County’s choice does not become president !
VB, Thanks for your excellent political observations. As amazing to me as Valencia county’s being the nation’s best bellwether county with regard to the electoral vote, the following has always struck me as being just as amazing:
In every presidential election since New Mexico became a state in 1912, the popular vote in New Mexico has mirrored that of the national popular vote for president (with only one exception in 1976), Not only has the New Mexico electorate voted the same way as have the national voters, but often the percentages have been very similar. This is a mystery since, as you point out, NM’s demographics are very different from those of the nation.