Election 2020: Not Over Until the Electors Say So

As if we haven’t been through enough drama and upheaval in this year like no other, I’m sure you will be delighted to hear that the actual outcome of the 2020 presidential election won’t be revealed until – wait for it – next year. Yes, unbeknownst to so many, it will not be until January of 2021 that we receive the final, official result.

But, you say, even Fox News has called the race, and Joe Biden is being called President-Elect, as if he has officially been named the winner. He even has one of those video backdrops – wherever it is he’s holed up – saying “Office of the President Elect.” So that should settle the issue, right?

Stop. First of all, there is no “office” of President-Elect; it is just a designation likely put on display to convince Americans that Biden has won. But far more importantly – hello – the media possesses no power to determine who wins elections. Their job is, or is supposed to be, reporting who has won.

Let us not forget the debacle of 2000, when networks called the race for Al Gore, then for George W. Bush, then for neither, until the U.S. Supreme Court rendered a final decision more than a month later. Big media outlets were desperate to grab headlines, competing to be the quickest to call the race, but they all wound up with egg on their face.

Fox News is praying their infamous and infuriating call awarding Biden Arizona – a state now in recount territory – early on election night will not come back to similarly haunt them, if it has not already, given the palpable anger of the Fox viewership. It was a cheap attempt to gain attention, as if the goal were to attract attention to Fox instead of reporting actual results in the election.

And so, it is time for a quick constitutional refresher in this era of major media hegemony, where people routinely rely on news from traditional and social media which later proves to be false or misleading. Even though some 150 million people cast ballots in the 2020 election, those millions did not actually vote for either Biden or Trump, but for people called electors, 538 of whom will vote to determine the official outcome, with 270 the magic number for victory. Article two of the Constitution offers plain language on how presidents are to be elected:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … The Electors shall meet in their respective States and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of Government of the United States, directed to the President of the Senate.”

By federal law, there is something known as a Safe Harbor deadline – December 8 – by which time any disputes must be resolved and the voting results sent on for the Electoral College to vote on December 14. The statute includes language that has undoubtedly caught the eye of the Trump team:

“If election results are contested in any state, and if the state has enacted procedures to settle controversies over electors and electoral votes, and if these procedures have been applied, and if the results have been determined six days before the electors' meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes.”

Electors are committed, but not bound by law, to vote for the man or woman to whom they are pledged. But the few so-called faithless electors who have gone against the grain have generally done so in one-sided elections and never impacted an outcome. Only 165 instances of faithlessness have occurred in the fullness of time, and nearly all those votes were switched to third party candidates or people not on the ballot, as opposed to a major candidate of the opposing party. There were seven faithless electors in 2016 – two pledged to Trump, five to Hillary Clinton.

While the electors meet and vote on December 14, the final tally will not be released until 22 days later, January 5, 2021, at which point we will finally be able to put the election to rest.

Undoubtedly, many of the 72 million people who voted for Trump are queasy about the prospect of a prolonged legal battle when the ship of victory seems to have sailed. But if he chooses to fight to the bitter end, as is his wont, the president’s battery of lawyers camped out in multiple battleground states across the land still have four weeks before the Electoral College votes to press their case that the election result being reported by big media is illegitimate. They must also win the crucial battle in the court of public opinion, but just as TV and cable networks don’t determine the outcomes of elections, public perception does not either. Electors do. But before they cast their votes, the ultimate judgment on Trump’s contention that the election was stolen seems bound for the same destination as 20 years ago: the supreme men and women in the black robes.

~

Read more from Tim Donner.