05.11.2020

At breaking point

With Republicans and Democrats fighting over the few remaining state delegates and threats of appeals to the Supreme Court, Daniel Lazare predicts that the constitutional crisis can only get worse

The 2020 presidential election is heading towards a worst-case scenario in terms of America’s sclerotic constitutional system: a neck-and-neck race in the electoral college that will likely wind up before the Supreme Court.

As of early morning on Wednesday November 4, Trump seemed to be closing in on victory. But four key states were still in play: Wisconsin, where Biden enjoyed a slight edge, plus Michigan, Pennsylvania, and Georgia, where Trump had a solid lead. But if Biden held onto Wisconsin, that would mean that the president would have to win the other three in order to rack up the 270 electoral votes needed for victory - a likely possibility, but far from a certainty. So both Democrat and Republican strategies were crystal-clear at that stage: the first wanted to keep the tabulation going until every last ballot was counted, while the second wanted to cut it short.

“We are up BIG, but they are trying to STEAL the election,” Trump tweeted in the early hours. “We will never let them do it. Votes cannot be cast after the polls are closed!”

A couple of hours later he added at a press conference:

This a fraud on the American public, this is an embarrassment to our country … We’ll be going to the US Supreme Court. We want all voting to stop. We don’t want them to find any ballots at four o’clock in the morning and add them to the list.

Republicans have a six-three majority on the Supreme Court, thanks to last week’s appointment of Amy Coney Barrett, the ultra-right judge from Indiana. So Trump would seem to have the edge, although it is impossible to be sure. But, if that is the case, the results will be eerily similar to the ‘Battle of Florida’ in November-December 2000. That was when the election also wound up in the hands of the Supreme Court and a five-four Republican majority awarded victory to George W Bush, even though he was trailing by several hundred popular votes in the state itself and by more than 500,000 nationwide.

Bush v Gore, as the decision naming Bush the president was known, poisoned US politics for years. Yet now it is happening again in an election that is far more bitter and divisive.

“The president’s statement, delivered in the White House, amounted to a reckless attack on the democratic process during a time of deep anxiety and division in the country,” The New York Times announced with its usual solemnity. “Trump falsely asserts fraud, claims a victory,” added The Washington Post. Regardless of what happens, a crisis of legitimacy will be the upshot - a crisis that will shake American politics even more profoundly than the one two decades ago.

Mishaps

So how did the United States get into such a mess? The answer is through a variety of mishaps that together added up to a perfect storm.

The most obvious concerns the Electoral College - an ancient mechanism dating from 1787 that was designed to give small states a bit of extra power in choosing a chief executive, but which now tips presidential politics strongly to the right by benefitting under-populated rural states that generally vote Republican. The results are racist and undemocratic, since they give voters in lily-white Wyoming (population: 579,000) roughly three times as much clout as voters in ‘minority majority’ California, where the population now tips the scales at close to 40 million.

But because it only misfired once when it allowed Republican Rutherford B Hayes to eke out a victory over Democrat Samuel B Tilden in 1876 despite trailing by three percent in the popular vote, the provision was largely forgotten. Sure, it made no sense, but what did it matter, since it was little more than a formality? But the electoral college roared back to life in the 21st century, when it allowed Bush to prevail over Gore in 2000 and then permitted Trump to triumph over Hillary Clinton in 2016 despite trailing by nearly three million popular votes. Although it is impossible to be sure until all the votes are counted, the situation could well turn out to be the same this year, if the College allows Trump to win over Biden despite once again trailing in the popular vote.

Three stolen elections in 20 years is no small matter. To the contrary, they mean that after years of dormancy the apparatus is now veering radically off course in an increasingly undemocratic direction. Yet nothing can be done, because a highly restrictive constitutional amending clause renders structural reform all but impossible. So, while the arrangement is unjust, it is destined to continue, even though it seems to be growing worse with each passing decade. ‘We, the people’ supposedly made the constitution in order to form a more perfect union, establish justice, ensure domestic tranquillity, and so on. Yet the people have lost control over constitutional mechanisms established in their name.

But constitutional mechanics are not the only reason 2020 is ending in a monumental snafu. Another has to do with constitutional politics. Democrats did not need to worry about the electoral college because they believed that victory was in hand. Everyone said so. Didn’t Trump spend his first three years in office dodging charges of Russian collusion? Didn’t he tell so many falsehoods that reporters lost count? Didn’t the release of his tax records show that he is a failed real-estate mogul, who only made money by outrageously manipulating the tax code? Hasn’t his mishandling of Covid-19 led to nearly 240,000 deaths, plus one of the highest infection rates on earth?

The answer is yes. But the fact that Trump was seemingly heading for disaster was why party bigwigs, led by Barack Obama himself, felt they could give Biden the nod last March. To be sure, he was a semi-senile old man, who had trouble remembering what state he was in and who stammered, choked and lost his train of thought mid-sentence. Amy Klobuchar and Pete Buttigieg were smarter and more articulate, while Bernie Sanders generated real enthusiasm among workers, minorities, poor people and the young. All three would have done better on the campaign trail.

Go wrong

But none of it mattered, because Biden was safe, he personified Democratic values (meaning that he is a tired old hack who will do anything to get elected) and he would not scare mainstream Democrats by bringing up ‘socialism’ and other strange topics. All he had to do was position himself one inch to the left of Trump on domestic policy and one inch to the right on foreign, by accusing him of going soft on Russia, China and North Korea, and then stand by and watch, as the votes rolled in. What could go wrong?

Plenty, as it turned out.

Biden’s performance on the campaign trail proved miserably inept. He insulted voters, made gaffe after gaffe, and told just as many untruths as Trump, if not more. As journalist Matt Taibbi put it, he “spent much of 2020 lying about everything from his Iraq war vote to his educational history, to a fantasy about being arrested in South Africa with Nelson Mandela” - the last was a story that he confessed in February was completely made up.¹ While denouncing Trump for building a wall along the Mexican border, he neglected to mention that he had championed precisely the same idea more than dozen years earlier.² In a debate with Sanders in March, he denied advocating a cut in social security benefits, even though he had issued a ringing call for a social security freeze in 1995. “I never said I oppose fracking,” he insisted in a debate a few weeks ago with Trump. Yet, when asked four months earlier whether there “would there be any place for fossil fuels, including coal and fracking, in a Biden administration,” he replied: “No, we would, we would work it out. We would make sure it’s eliminated and no more subsidies for either one of those either - any fossil fuel.”

This was not the first time Biden was caught making things up. Back in 1988, he was forced to drop a short-lived presidential bid after being caught plagiarising a speech by Neil Kinnock and then admitting to having done the same with an academic article back in his law-school days. Yet, once he headed back onto the campaign trail in 2020, he could not resist doing the same thing again and again.

Then there was corruption - a topic in which Biden also proved inept. Team Trump succeeded in turning the tables on him by revealing evidence that he had worked with his son, Hunter, in an effort to make money off the family name. The New York Times called the story “dirt” and made fun of former New York mayor Rudy Giuliani - admittedly an easy target - for digging it up.³ But the story was solid, particularly once a businessman named Tony Bobulinski, Hunter Biden’s former business partner, gave a press conference and then sat down for an interview with Fox News, in which he stated that Joe Biden was to get a share of the profits and that he met with the ex-vice president on at least one occasion to go over the venture.⁴

As the Times said about the Biden clan’s dealings with China, “The records make clear that Hunter Biden saw the family name as a valuable asset, angrily citing his ‘family’s brand’ as a reason he is valuable to the proposed venture.”⁵ Whether that means that Biden is as corrupt as Trump is uncertain. But it certainly allowed Trump to render the issue moot, as far as his own misdeeds were concerned.

Finally, there is the pandemic. Although Trump’s abysmal performance provided Biden with what should have been a fat and easy target, his response in this regard was weak as well. Rather than slamming Trump for failing to impose a nationwide facemask mandate - the simplest, easiest and most effective way of preventing the virus’s spread - he confessed at the outset that he lacked constitutional authority to impose a mandate himself, adding that all he could do was “make sure we have everyone encouraged to wear a mask all the time”. Instead of taking charge, in other words, he would merely try to persuade. Yet the strategy would have little effect on ‘Live free or die’ governors in the south and west, who believe that Americans have a constitutional right to wear or not to wear whatever they like. If that did not work, Biden added, he would reach out to mayors and county executives instead. But that underscored his weakness all the more.⁶

Biden failed to convince voters that he would do a better job. He failed to hit Trump where it hurt and he allowed his opponent to take advantage of his own vulnerabilities. Democrats expected Trump to self-destruct. But they failed to realise that it was their man who would self-destruct first.

What they thought would be an easy win has thus turned into an explosive constitutional crisis. What happens next is unknown. No-one has any idea how long the vote tally will go on, whether Trump will be able to draw it up short, or whether the Supreme Court will intervene. If Trump succeeds in halting the count midway or if the court acts in a way that is as nakedly partisan as it was in 2000, then there will likely be an explosion - and perhaps a counter-explosion, as the Trump forces strike back. The chemistry is unpredictable.

But one thing is clear. America’s rolling constitutional crisis has reached a new level and can only grow worse and worse.

1. taibbi.substack.com/p/the-worst-choice-ever.↩︎

2. youtube.com/watch?v=15djRzWG3_0.↩︎

3. nytimes.com/2020/10/31/us/politics/rudy-giuliani-biden.html.↩︎

4. The October 22 press conference is available at youtube.com/watch?v=aiiSq7toqlQ&t=29s. The Fox News interview, which aired five days later, can be seen at youtube.com/watch?v=awgSHHZ7B38.↩︎

5. nytimes.com/2020/10/25/us/politics/bidens-china.html.↩︎

6. apnews.com/article/election-2020-joe-biden-donald-trump-pandemics-virus-outbreak-ebafe5c438cbad81fc7eb2b3a3a3abd1.↩︎