Election 2020: the legal apologists are at it again

“Lawyers are the mysterious arbiters of social change.”

- attributed to Hannah Arendt

“One, two, three, many Floridas.“

Thanks to legal apologists, the 2020 Presidential Election is over before it starts. By Election Day we’ll be taking bets on when the 2020 election wraps. According to The NY Times, August 9 edition (1), the day the winner is decided may be dragged well into January.

The question is, are these delays compelling, let alone necessary?

Most lawyers up and down K Street would have us answer with a resounding yes.

Can’t we do better than throw the voters’ results to the Supreme Court who will interfere with the states’ decision?

Vice President Al Gore in deciding NOT to support the Florida process and force a recount saved the country another round of chaos. But decisions have at least 2 consequences — one, intended and one “unintended” — and Gore’s position not only cemented his loss to Bush (intended) but also delegated accountability to the Supreme Court to “interfere” in states’ vote tallying (unintended).

One can argue that Gore was simply affirming the Supreme Court decision to interfere with the Florida mandated results. “Interference,” to paraphrase a cliche, is like toothpaste. Enter lawyers.

Do we hear Alexander Hamilton shouting from his grave? Hamilton’s position was that the ultimate authority in vote tallying was in the numbers not the institutions, in this case, the states. ‘Let the people decide, not collectives or institutions speaking for the people.’

We have left plausibility to the realm of legal argument. And since 2000 we have watched legal “apologists” work up and down the ballot, turning the entire process over to those who manage the results. State Election Boards have assumed the power of judging the results and the state Supreme Court(s) dictating the terms of the legality of judging the results. On paper, it’s a “voter lockdown.”

Herein lies the argument to reform our electoral process.

Lawyers play the reductionist game, reducing the consequences to the least objectionable outcome. Which may or not square with the voice of the people. And which begs the question, just how fair are our elections?

Certainly, as some suggest the unfairness could be mitigated by removing the supremacy of the Electoral College, by making Washington DC and Puerto Rico states, and by rebuilding the Federal Election Conmission.(3)

We know these initiatives will probably fester on Mitch McConnell’s desk.Unless Sen. McConnell is voted out.

But then again, this outcome depends on votes, counted and “verified” by a State Election Board.

And then again, perhaps now is not the time to be having this discussion, which alone argues for reform and rethinking “democracy.”

August 9 — 10, 2020

(1) “Long Legal Fight May Follow Vote on Election Day,” NY Times, Sunday, August 9

(2) “The future Alexander Hamilton warned about has arrived,” David Litt, July 3, GEN

(3) Jeffrey Toobin makes the argument that Gore effectively discounted his plurality by not asserting a recount of all Florida counties, not just the ones that voted Democratic.



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Rodney Clough

Rodney Clough

Refuses to nap. Septuagenarian. Cliche’ raker. Writes weekly.