Biden Might Win But Trump Could Still Be President

The US presidential election is possibly the most widely and closely watched electoral contest in the world. Like the 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 US 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 Mayor Richard Daley, an old-fashioned Democratic party boss, with a wide network of friends in the labor unions and organized crime “stole” the election by ballot stuffing. A popular exhortation in Chicago those days was “vote early and vote again and again!”

Closer to our times George W Bush is generally believed to have won 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. Furthermore, Florida Governor Jeb Bush was George W. Bush's brother. Between them they ensured that over 12000 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.

Bush won the Electoral College 271-266 though Gore won the popular vote by 540,000 votes. Al Gore received 48.4% while Bush received 47.9% of the popular vote.

US presidents, 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%) to his 62,979,879 (46.1%), but Trump won Electoral College votes 306 t0 232

That’s 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 US Senate blocked the appointment of Merrick Garland, outgoing President Barack Obama’s nominee a full ten months before his term ended.

The Republican majority leader Senator Mitch McConnell then argued that the elections were close and the people should decide. This time he argued just the opposite.

Most observers believe that like Bush vs Gore, this year’s elections will also end up before the US Supreme Court over challenges by a losing President Trump, to the huge numbers of postal ballots. Trump has not hidden his views on postal ballots. Time and again he has described them as “very dangerous for our country,” “a catastrophe” and even calling 2020 “the greatest rigged election in history.”

The USA has about 240 million eligible voters. As of November 1 more than 91 million Americans had already cast their ballots. Surveys have also revealed that almost 60% 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 scenario: The voting boxes and machines might 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 currently borderline states like Texas, Georgia and Florida, states that favoured Trump in 2016.

Trump operatives are expected to scrutinise each and every postal ballot and challenge many. It is estimated that close to 1.3% of postal ballots are rejected on various technicalities. This suggests close to 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 around hundreds of Trump lawyer operatives have fanned out and the electoral process can expect to get slowed down by the sheer weight of challenges. Trump has been quite blatantly signalling to his troops to hobble the postal ballot counting.

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 members of the Electoral College by December 8. The Electoral College will have to formally meet by December 14 to “elect” the President. The big question now is what next?

The USA and even the world are 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.”

The 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 President of the United States. The matter will almost certainly have to be resolved by the US Supreme Court. But its tendencies are well understood.

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