Leibowitz on Trade: Election Week—What a Ride!  

Formalities and lawful procedures still must be maintained. Disputes over allegedly invalid ballots, late arriving ballots, etc. will be addressed, though they are exceedingly unlikely to alter the outcome in any state, and especially not in Pennsylvania, the linchpin of this election.

Moreover, federal law demands that these disputes be resolved, in the presidential election, not later than Dec. 8. The law requires that, by that date, six days before the Electoral College is scheduled to vote, each state must certify the identity of the electors appointed to vote. If they do, the certification by the appropriate official is “conclusive,” meaning that the electors and their votes are locked in. Any controversy about which candidate received the most popular votes in the state must be resolved by Dec. 8. This provides a “safe harbor” for states in certifying the electors; if a state fails to certify the electors by the “safe harbor” date, then Congress may decide not to count the electoral votes of that state in the election of the president and vice president. That “safe harbor” provision was a key deciding factor in the election of 2000 (Bush v. Gore).

This year, any disputes about the election outcome in any state must be resolved by Dec. 8. If President Trump wishes to challenge an election outcome in any state, it needs to move very fast and show that enough votes are in play to change the outcome.

It seems extremely unlikely that the Trump campaign can accomplish that. News services and networks have made quasi-authoritative “calls” in enough states to give Joe Biden the victory. Overturning the result in any single state will be a massive task; in all-important Pennsylvania, it seems impossible because the margin is too large—and the votes arriving after election day by mail are too small to threaten Biden’s lead there.

Now that we know who will win, the meaning of that result may fairly be debated, without the uncertainty we have faced until yesterday.

So far, we have heard generalities—the tone of the president-elect’s remarks last night was soothing, as it should have been. He recognized that losing a close election stings—and he speaks from experience. Now, however, policy choices are necessary, and feelings are strong about them. Which issues will the new administration choose to give voice to for those who did not support its election? Nobody really knows that, not even Joe Biden, who will listen to advisors that have not been named yet. The lesson is, as it always was, to advocate your position vigorously and to remember that no battle in Washington is ever truly over.

America’s ability to deal with contentious issues without unconditional surrender by the losing side is one of our great strengths as a society. The more you examine our system, the more you see its intricacies as a mechanism for change that allows for infinite corrections and refinements. Take the Electoral College, for example. It turns the presidential election into 51 (counting DC) separate contests, with the rules for each state constructed by that state. A national popular vote would necessarily require one set of election rules for all states, with disputes about mail-in ballots, etc. resolved by Congress. Candidates would campaign for votes, not in Iowa or Wisconsin but in New York, Los Angeles, Chicago and Houston.

The electoral vote system seems quaint—but it allowed the creation in 1789 of a single country with broadly shared values. Small states have a larger share of the electoral pie than their population alone would dictate. Larger states have less. So, candidates campaign in rural as well as urban and suburban areas. The votes this year reflected that “small state bias.” The voter turnout was clearly a record. Joe Biden in 2020 received more votes than any presidential candidate in history—and Donald Trump in 2020 received more votes than any presidential candidate in history except Joe Biden. This election was close. And we haven’t even talked about the House and Senate yet.

One verdict is pretty clear—the American people voted for divided government, declining to provide all the levers of power to one party. While the Senate is still in play, with control of that chamber dependent on two run-off elections in Georgia, it seems likely that the Senate will remain with a Republican majority. And the House of Representatives will have more Republicans than in the current Congress.

As mentioned above, before important policy decisions are made, appointments must be made by the president and, in some cases, confirmed by the Senate. Traditionally, January sees a spate of Cabinet announcements; also by tradition, pundits will speculate starting immediately about who is well-positioned to be appointed. It is a great parlor game. But the Transition Team already has been named and will be vetting the possible names.

Readers who are elated and those who are disappointed may wish dramatically opposing policy outcomes. At this point, do not despair. While candidates are prone to highlight their differences with opponents by saying “on Day One” we will do something, the reality is slower and more complicated. Write letters, make phone calls, keep the ball in the air—that’s the watchword in these uncertain days.

It is good to know, at least, who won the presidency.

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