11.11.2020

Freedom, Fairness, and the 2020 General Election

Joe Biden was declared the winner of the 2020 race for President - Donald Trump refuses to concede and insists on sowing doubt on the election as a free and fair contest. How free and fair was the election?

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David Moscrop, Ph.D., is a #FESFellow2020. This is his sixth piece in a series on social democracy and the U.S. elections.

On Saturday, November 7th, four days after Election Day, news networks in the United States called the race for Joseph R. Biden, the president-elect and soon the republic’s 46th president. Congratulations from world leaders soon followed, starting with Canada’s prime minister, Justin Trudeau—who seemed eager to recognize the Democrat as the winner after a difficult four years for America’s neighbor and ally to the north.

Not long after Trudeau’s congratulations, there came similar recognitions of the Biden win from France’s Emmanuel Macron, the United Kingdom’s Boris Johnson, Germany’s Angela Merkel, Israel’s Benjamin Netanyahu, and others. The race was over, despite President Trump’s refusal to concede or, indeed, his false claim of victory in the wee hours of November 4th. 

 

Election Day at the polls and in the post

Despite concerns in the lead up to the election about interference from Trump and his allies, election day itself was, on balance, calm. For months, indeed for years, Trump had been undermining electoral integrity. He has warned of and claimed voter fraud without evidence this was a concern; he has undermined the legitimacy of postal ballots and diminished the United States Postal Service’s capacity to receive, process, and deliver these ballots in a timely manner; he has mobilized violent supporters and enlisted legions of unregistered, even armed, “poll watchers” who, some worried, might intimidate voters— and who must be distinguished from the typical poll monitors who ensure a fair process. But nonetheless, voters persisted.

Aside from a few disconnected reports of difficulties and concerns around individual polling stations, the most significant failure on election day was the U.S. Postal Service’s failure to track 7 percent of the ballots processed by its facilities. As the Washington Post reported, the Service “ignored a federal judge’s order to sweep processing plants” and decided to keep to their own schedule. The judge reprimanded the USPS for its failure, which left the organization nearly 4 percent short of the 97 percent processing target suggested by “postal and voting experts.” The issues, however disconcerting, do not mean that the ballots were lost or went undelivered, according to the USPS. And while a serious failure, the USPS’s failure did not undermine the legitimacy of the election.

 

Voter Suppression and Protection 

The vote on November 3rd was calm enough, but there were plenty of obstacles to a fully free and fair election ahead of time that had to be overcome by voters. Writing in Slate, Mark Joseph Stern pointed out that Republican-led voter suppression efforts in the United States are widespread and have been for a long time. These tactics range from voter ID laws to the dismantling of the Voting Rights Act and other measures that have led to gerrymandered districts, long waits and lines to vote, and reduced postal service capacity. In spite of these barriers, set especially high in some instances for racialized Americans, the country is headed for its highest turnout in over a century as the final count is projected to reach 66.5 percent. Nonetheless, the systematic and long-term de facto disenfranchisement of millions of voters in the United States remains a serious concern that the incoming Biden administration ought to work on alone and in concert with the states.

In Congressional races especially, extreme redistricting – known in the United States as gerrymandering – has been used as a partisan strategy. The practice of drawing district electoral boundaries to advantage one party over another has long been a significant impediment to reflecting the will of the electorate. The Constitution leaves to the states the “Time, place, and manner” of elections and the U.S. Supreme Court has upheld the right of states to set boundaries more or less as they please. In most states, electoral boundaries are left up to partisan legislators and the governor, though a handful have adopted independent redistricting commissions. Gerrymandering is a blight on American elections, but even this practice did not render the 2020 contest illegitimate. 

 

Legal challenges and the electoral danger of the courts

As Democrats, the country, and the world now prepare for a Biden-Harris administration, Republicans and the Trump team are launching baseless challenges against the win in court. As Time Magazine reports, “Many of [the Trump] campaign’s lawsuits filed this week have been dismissed on lack of merit, and the ones that have gained some traction are unlikely to change the outcome of the Presidential race.” Trump has undertaken multiple legal efforts among other places, in Pennsylvania, Nevada, Michigan, Georgia, and Arizona—all states which, at the time of writing, have either been won by Biden or in which the Democrat is leading.

The legal challenges vary. One baseless claim is that Republican poll-watchers around the country were not permitted to scrutinize ballot counting – that suggestion is utterly and absolutely false. None of these challenges will change the outcome of the election, even as the 45th president refuses to concede this race. Once more, the courts support the widespread and accurate belief that the election was free and fair enough, and legitimate—even as legal theories consolidated in the judiciary by Republicans make the process uncertain and difficult.

The courts have long been a site of electoral contestation. Ask anyone who lived through Bush v. Gore in 2000. This time around, just days prior to November 3rd, the United States Senate confirmed Amy Coney Barrett as an associate justice of the Supreme Court. Years ago, the Senate had denied President Obama the confirmation of Merrick Garland as Majority Leader Mitch McConnell, a Republican, cited the “long standing tradition of not fulfilling a nomination in the middle of a presidential [election] year”—a tradition that Brookings Visiting Fellow Russell Wheeler points out does not exist. McConnell did not apply the same pseudo standard to Trump’s pick.

Writing in Politico, Anita Kumar writes what others have also indicated in the lead up to the election and in its aftermath: Trump, trailing Biden for months, has long planned to try to win the election on points at the Supreme Court. Trump will have his day—or, rather, days—in court. But he will not undo the results of a legitimate election. It will not happen. This year will not yield another Bush v. Gore given that, among other reasons, Trump’s challenges keep failing, the matter is not a single-state recount, and the number of votes being challenged are not sufficient to determine the race.

 

Republican recognition of reality

By now, even some prominent Republicans are publicly acknowledging Biden’s win and Trump’s defeat. Forbes is keeping a list. Despite the Republican Party’s official delusion and McConnell’s refusal to refer to Biden as president-elect, former President George W. Bush and his brother, former Florida Governor Jeb Bush, have recognized Biden as president-elect. So has Utah Senator Mitt Romney, former Ohio Governor John Kasich, Alaska Senator Lisa Murkowski, Maine Senator Susan Collins, and roughly a dozen others. Beyond these names, 30 former Republican Members of Congress have asked Trump to concede

The 2020 presidential election was legitimate. In recent days, a second group of international election observers have confirmed as much. As with past elections, the freedom and fairness of the contest was constrained, this time in part thanks to efforts by Trump and, once more, some, though not all, of his Republican allies around the country to disenfranchise voters and give themselves an edge - but not enough of an edge to render this election either unfree or unfair on balance. Trump has lost. And whether he ever recognizes as much is irrelevant to the 50 states and the District of Columbia certifying their respective votes, the Electoral College electors casting their ballots, and Biden being sworn in as the 46th president of the United States in January. In that sense, the framers of the Constitution and its practitioners years and years hence have managed to create and maintain a decentralized system that checks, if not completely then at least adequately, even the most intransigent, unreasonable, and obtuse presidents in history. That said, Trumpism, as others have warned, may remain, and thus the fight continues even as the election ends.

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