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too early to call 720

As we reach the weekend, it is looking more like Donald Trump will be defeated and Joe Biden will become the next President. The election will probably be called this weekend. Here are the outstanding races, state by state:

  • Arizona (11 electoral votes).  Trump is furious that Fox and later AP called the race for Biden, and Biden’s lead is shrinking, but at a very slow pace. For Trump to win, he would probably have to get about 60% of all remaining ballots. Possible, but somewhat unlikely. Biden can win without Arizona, and as as been said, Trump is on a tightrope, and must win every outstanding race to prevail.
  • Nevada (6 electoral votes). Some votes remain to be counted, largely in Clark County (Las Vegas), which usually votes Democrat, and has 70% of the Nevada votes. Biden’s advantage over Trump is small, but growing. Biden also can win without Nevada; Trump cannot.
  • Georgia (16 electoral votes).  Several days ago, I talked with a Biden operative and attorney who went from New England to Atlanta to help oversee the vote count. At that time, he was adamant that Biden would win Georgia. It didn’t look likely, but Biden has a small lead as I write this, with almost all votes counted, except for some overseas military ballots. (And remember that Trump called servicemen and women and veterans like me “losers”?). If this lead stands, there will be a recount, but if Biden wins only Georgia of the races now in dispute, he would have 269 electoral votes, one short of a majority. It would be a tie, throwing the race to the House (see below). If Trump does not win Georgia, people in the White House are saying, it will be “the outhouse and not the White House”.
  • Pennsylvania (20 electoral votes). Trump had a huge lead initially, but Pennsylvania Senator Bob Casey, of the powerful Casey family that has run Pennsylvania for generations, said several days ago that Biden would win the state by about 100,000 votes, and he reiterated that statement on Friday as Biden did in fact take the lead by a small but increasing amount. The reason Senator Casey believed this is that the remaining ballots to be counted are mail-in ballots, and recent tabulations have shown that over 75% of the remaining uncounted ballots are mail-ins and are mostly Democratic. If Biden wins Pennsylvania, nothing else matters: he will become President on January 20, 2021. If…

(I am not counting Alaska, which will almost certainly cast its three electoral votes for Trump, and the one undecided electoral vote in northern Maine is not important unless Biden is stuck at 269. And North Carolina will go for Trump. )

What Trump may try to do to mess up the election

Hopefully by this weekend some of the races will have progressed far enough so that the networks can call the election for Biden, and he can proceed with the transition. The inauguration is about 11 weeks away, about 2.5 months. Key dates are December 14, when the electors meet; January 3, 2021, when Congress reconvenes; and of course, Inauguration Day. That is a lot of time for a desperate Trump, facing possible prison, to do mischief. 

So far, Trump’s lawyers have been tossing legal mud at the various state walls and doing nothing but staining them.

So far, Trump’s lawyers have been tossing legal mud at the various state walls and doing nothing but staining them. They have also petitioned the Supreme Court for help, but from my legal experience, I can say you just can’t do that; to get to the Supremes, you have to go through the legal processes in place - through the various state courts, and then the federal courts to the Supreme Court. There is no critical deadline until about December 8, when the “safe harbor” is reached for each state to get its electors in line to vote in the so-called Electoral College on December 14.

In 2000 (when I was in Florida to help Gore), the Supremes waited to the last minute before they unwisely (in my opinion) acted to “elect” Bush by a 5-4 vote. Otherwise, neither Bush nor Gore would have gotten a majority of the electoral votes and it would have gone to the House, each state with one vote, based the size of each party’s House delegation.

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The Trump lawyers want to do a recount in Wisconsin, but Biden has won the state by more than Trump did in 2016, and there is no evidence on any voter fraud or bad voter counts, contrary to what Trump bleats out. There may also be recounts in Arizona, Nevada and Georgia, due to the expected narrow victories for the winning candidate, but recounts rarely flip more than a few hundred votes.

And in Pennsylvania, the Trump lawyers may try again to petition the Supremes to throw out the mail-in ballots which were postmarked by November 3, but were received by November 6. The Pennsylvania Supreme Court authorized this procedure, and Pennsylvania voters relied on this ruling in the timing of their voting, and the U.S. Supreme Court has already refused to hear this argument twice. There is also the fact that Pennsylvania law does not allow any ballot counting to begin until 7am on November 3, and it is impossible to complete the counting in one day. It would be a nonstarter if Trump’s lawyers complained that all ballots had to be counted on that day. 

The U.S. Supreme Court is usually very reluctant to intervene in elections unless it is absolutely necessary; if they did so in this case, and flipped Pennsylvania to Trump and awarded him the 2020 election as they did with Bush v Gore in 2000, there is a danger of creating a civil war, and the total destruction of the credibility of the Supreme Court. American voters will not accept another Bush v Gore. 

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Other ways Trump can mess up the election

The President has a lot of hidden powers, and Trump is desperate; jail almost certainly awaits, and the destruction of his financial empire is imminent if he is forced to leave office. He might even try to start a war with Iran or North Korea, based on a phony “Gulf of Tonkin” type incident that he might create to justify the war. However, Trump would have to get the military to cooperate, because they would wage the war.

Recall that Nixon’s Secretary of Defense James Schlesinger required his generals to let him know if an unhinged Nixon ordered them to start a war or fire off nuclear weapons in the desperate days before he resigned and left office. Hopefully our current military leaders would act the same way if Trump directed that a nuclear war on Iran begin. 

Trump also might try to order that the entire country be put under martial law, but the same issue would arise - he would have to get the cooperation of the nation’s governors before the entire National Guard could be called up, and the active duty military most likely would refuse to cooperate, especially if he had already lost the election to Biden.

As a former Navy JAG LCDR, I cannot see the military doing this. Recall that the respected former Marine General John Kelly (who also was Trump’s chief of staff) called Trump “the most flawed person” he had ever met. 

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This would be a Banana Republic tactic if Trump tried this, and it has not even worked in many third world countries. The result has often been the execution or imprisonment of the dictator.

The next few months will be very interesting…

Ted Vaill