Defiant President
Will the election end up in the Supreme Court?
By Joseph Klein

Election Day 2020 finally arrived. Anxiety across the country has reached a fever pitch about an election that may go down as the most divisive one since 1864, which was held during the midst of the Civil War. Abraham Lincoln ended up winning that election handily. But the 2020 election has turned out to be much closer than pundits in the media and pollsters predicted, despite a widening gender gap and the movement of suburban voters into the Democratic camp. The tidal wave for Biden that Democrats were hoping for did not materialize. Polls in some key states such as Florida turned out to be way off base.

This race has seen a record numbers of mail-in ballots cast, which will be counted under a hodgepodge of rules that vary from state to state. The mail-in votes skewed heavily in favor of Biden in key battleground states in the early tallies, but Trump managed to close the gap with the votes from his supporters cast in person on Election Day. With teams of lawyers from both sides out in force planning to litigate close vote counts, it could be days or even weeks before we know for sure whether Donald Trump or Joe Biden will finally prevail.

In addition to trying to hold onto the White House, Republicans have the task of defending 23 seats in the Senate. As of early Wednesday morning, the Republicans took the contested Alabama Senate seat back from the Democrats, as former college football coach Tommy Tuberville defeated Democratic Senator Doug Jones. The Democrats in turn flipped the contested Senate Arizona seat, as Mark Kelly defeated the incumbent Senator Martha McSally who nevertheless has refused to concede. It looks like the Senate seats currently held by Susan Collins in Maine and Thom Tillis in North Carolina will remain Republican, although these races have not been officially called as of early Wednesday morning. If the Republicans manage to hold onto these seats, they will be able to retain control of the Senate. Meanwhile, the House is projected to remain in control of the Democrats.

Trump won Florida by a larger margin over Biden than he did over Hillary Clinton in 2016, due in no small measure to an increase of Hispanic support for Trump. A majority of seniors in Florida also continued to back Trump. The RealClearPolitics average in Florida was way off. It had Biden leading by almost one percentage point. North Carolina and Georgia were not called as of 2 am Eastern Time on Wednesday morning.

Moving to the Southwest region, Trump won Texas by a comfortable margin as expected. Biden, however, managed to flip Arizona, taking its 11 electoral votes from Trump’s column, according to a call by Fox News that the Trump campaign disputed as nearly a million ballots reportedly remained to be counted. A majority of Hispanic voters in Arizona reportedly supported Biden. Concerns over the handling of the coronavirus pandemic among the growing senior population in Arizona weighed in Biden’s favor.

As expected, President Trump won Ohio by a clear margin, which significantly exceeded the RealClearPolitics average of 1 percent. Trump also won Iowa by a margin that only the Des Moines Register came close to predicting. Republican Senator Joni Ernst won her campaign for re-election.

Attention turned, as it did in 2016, to the battle ground states of Michigan, Wisconsin, and especially Pennsylvania. All three states remained up for grabs as of early Wednesday morning.

Biden was still more than 30 electoral votes short of reaching the 270 needed to win when he decided to emerge from his Wilmington, Delaware basement to make a statement at around 12:30 am Wednesday morning Eastern Time. He predicted victory, while foreshadowing a fight against any challenges to the validity of ballots by demanding that “every vote be counted.”

President Trump then tweeted: “We are up BIG, but they are trying to STEAL the Election. We will never let them do it. Votes cannot be cast after the Polls are closed!” Twitter once again shilled for the Biden campaign by posting, “Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process.”

In subsequent remarks, Trump was defiant. He declared that he would not stand for the disenfranchisement of the voters who came out in droves to support him. He claimed victory in Georgia and North Carolina. “They can’t catch us,” he said. Trump also questioned the call for Biden in Arizona. “Most importantly,” Trump said, “we are winning Pennsylvania.” He also pointed to substantial leads in Wisconsin and Michigan. “Frankly, we did win this election,” Trump said as he complained of fraud and efforts to steal the election. “We will be going to the Supreme Court,” Trump vowed.

President Trump has every reason to be concerned about the potential for cheating, particularly in Pennsylvania – the state that may well turn out to be ground zero for determining the final outcome of the election. Pennsylvania is allowing mail-in ballots received up to three days after Election Day to be counted so long as the envelopes containing the ballots are postmarked by Election Day. Moreover, if a postmark is smudged, the sender will be given the benefit of the doubt that the ballot envelope was postmarked on time. Finally, Pennsylvania has decided not to match signatures. The result will be litigation that makes Florida in 2000 seem like child’s play. Pennsylvania’s Democratic Attorney General Josh Shapiro added fuel to the fire when he declared before any votes were counted that “if all the votes are added up in PA, Trump is going to lose.”

The Supreme Court has avoided making a ruling so far on whether rules changes such as extensions for receipt of mail-in ballots are lawful if not enacted by the state legislature. Unless North Carolina and Georgia end up in Biden’s column and make what happens in Pennsylvania moot, the Supreme Court will not be able to duck the election issues for too long.

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