This is probably going to cause a constitutional crisis of epic proportions.
The problem isn’t the possibility of fraud that Donald Trump has been going on about. Cases of possible double voting or voting on behalf of dead people Daley-machine-style are statistically insignificant, amounting to at most 0.0025% of mail-in votes.
The real issue is that the ballots may not be counted on time, triggering the insanity of the 12th Amendment to the U.S. Constitution.
The date to remember is December 14th, when the delegations of the Electoral College meet in their respective states. That’s a hard deadline. Each delegation can only certify their state’s vote counts if they are 100% complete—machine votes cast in person at polling places on election day, early votes, absentee ballots, write-ins and, this year, COVID-19 mail-in ballots. If the state fails to certify on time, its electoral college votes aren’t counted.
Within each state, there is a canvassing/certification deadline for county officials to submit their results. Most are in late November. California, with a December 11th deadline, cuts it close and usually files its national certification last.
State election officials are doing their best to meet the challenge. They are hiring additional staff, buying new tabulation machines and installing drop boxes. Even assuming that they will be able to hire the additional personnel they need in the midst of the coronavirus pandemic, the practical impediments to meeting the December 14th deadline are daunting. Mail-in ballots are manually opened and signatures must be visually compared, sometimes several times, to Board of Election records.
Then there are technicalities. For example, 16 states require mail-in ballots to be submitted with an extra “privacy envelope.” In the battleground state of Pennsylvania, 6.4% of absentee ballots submitted in a 2019 election were rejected because voters neglected to insert their ballot inside the privacy envelope inside the mailing envelope—a significant margin that could change the outcome on a national level. Both parties are gearing up for legal challenges about issues like this across the nation.
“Every absentee or mailed ballot, even if dropped off directly at the designated county drop box or polling center, most likely will not get counted on Election Day, and it can easily be challenged and delayed and even rejected on a technicality,” Jed Shugerman writes at Time. “Every mailed or absentee ballot, in an envelope with signatures, is its own hanging chad, its own built-in legal delay.”
If enough states are embroiled in vote-counting controversies to prevent either President Trump or former Vice President Biden from achieving the 270 electoral votes required to declare them president-elect on December 14th, the obscure 12th Amendment kicks in.
Used only once—in 1825 to elect John Quincy Adams—the 12th Amendment triggers a bizarre “House of Cards” series of remedies guaranteed to eliminate any remaining belief that the Framers wrote a perfect document designed to withstand the test of time, or that the United States is a democracy.
After the new 117th Congress convenes on January 3rd, the House of Representatives would vote to elect the president and the Senate would elect the vice president. “Each state delegation gets one vote, and 26 votes are required to win [out of 50 states]￼,” reports the Associated Press. “In the Senate…each senator gets a vote, with 51 votes [out of 100 seats] required to win.”
Even if Democrats enjoy another “blue wave” election that allows them to pick up congressional seats, they will not capture 26 state delegations in the House of Representatives. Trump would win. If Democrats have taken back the Senate, they could select a vice president to replace Mike Pence.
It wouldn’t matter if a newspaper recount were to determine later on that Biden should have won both a popular and electoral vote landslide. Trump would remain in the White House.
The Democratic Party and its allies in the media have been pushing mail-in balloting, but voters who want to see Joe Biden elected and are willing to brave the health risks should consider showing up for early in-person voting. In-person ballots are far less susceptible to rejection over technical issues like security envelopes, they are counted immediately and they thus meet the December 14th deadline for certification.
As my readers are aware, I do not support either Trump or Biden and will be voting third party, probably for the Greens, this fall. But I don’t support disenfranchisement either. I want everyone’s will to be expressed.
No matter what happens, no matter who wins, American politics are about to become extremely dangerous. Democracy fails when the losing side refuses to accept the legitimacy of the winning side. That will certainly be the case this year.
(Ted Rall (Twitter: @tedrall), the political cartoonist, columnist and graphic novelist, is the author of the biography “Political Suicide: The Fight for the Soul of the Democratic Party.” You can support Ted’s hard-hitting political cartoons and columns and see his work first by sponsoring his work on Patreon.)