Abu Dhabi, UAEThursday 26 November 2020

US ELECTIONS

US election: Legal battles ahead will reveal the health of America's democracy

Analysis: Tim Marshall considers the next steps if the Trump-Biden race moves from ballots to courtrooms

Detroit election workers count absentee ballots for the 2020 general election on November 4 in Detroit, Michigan, AFP / JEFF KOWALSKY
Detroit election workers count absentee ballots for the 2020 general election on November 4 in Detroit, Michigan, AFP / JEFF KOWALSKY

“If you must break the law, do it to seize power. In all other cases observe it,” said Julius Caesar.

There are similarities between the Roman Consul of antiquity and the current American president of the 21st century – a tendency towards absolutism, fancy palaces, and so on.

A major difference is that Donald Trump is subservient to the law but also protected by it.

If he believes he has been robbed of a second term, there is a route back to the White House through the courts.

This means the American election could be decided by just votes – the majority of the Supreme Court.

Dozens of lawsuits have been filed around the country, some of which have been thrown out.

There are many details on which cases can be made. For example, in Nevada, Mr Trump’s lawyers have demanded access to the Department of Motor Vehicles to check signatures with voters’ ballots.

They have also complained about an absence of monitors at some voting stations.

Did the actions of officials to expand ways to vote increase the risk of fraud?

Another example is the allegation that "curing" ballot forms breaches state laws.

Curing is when a voter has incorrectly filled out a form or failed to put it in mandatory secrecy envelope.

Some of these voters were contacted by officials, allowing them to correct their error.

Republican lawyers asked why state resources were not instead used to encourage in-person voting instead of coaching people how to fix postal votes?

They will also argue that state laws do not allow for what they are calling a second vote.

Whatever the complaint, most cases boil down to two legal questions and spring from decisions made to make voting safer during the coronavirus epidemic:

1. Did the actions of officials to expand ways to vote increase the risk of fraud, and therefore infringe on the rights of other voters?

2. Because the Constitution says only state legislators can set out election rules, were rule changes made by governors, or other officials, unconstitutional?

If over the next few days a court answers "yes", then it’s possible some of the postal ballot votes could be annulled.

If it says "no", the Trump camp could appeal all the way up to the country’s final court of appeal, the US Supreme Court, where a simple majority of nine votes decides the case.

Last week, Mr Trump’s choice for the vacant position in the court, Amy Coney Barrett, was sworn in, leading to Democrat supporters fearing there is a built-in 6-3 conservative majority.

But theoretically, all nine judges reach decisions based solely on their interpretation of law.

The court's Chief Justice, John Roberts, has already ruled that “different bodies of law and different precedents” in different states mean a decision about a case begun in one state may not set a precedent for all.

In 2000, it took 35 days before Al Gore conceded to George W Bush after a Supreme Court ruling for the "unity of the nation".

But these are different times. Unity is scarce and conceding is unfashionable.

If the court cases drag on, we could come dangerously close to the first constitutional deadline – December 14.

That is when the electoral college electors in each state begin to vote.

Those votes must reach the Senate by December 23 and must be in place by the time Congress sits on January 6, ahead of Inauguration Day on January 20.

Another figure from history, France's Louis XIV – the Sun King –said: “It is legal because I wish it."

Democracy has defeated such despotism and, after the spectacle of the American democratic voting system we have just seen, we are about to witness the democratic legal system in action.

Mr Trump has tweeted that unchecked voter fraud could “induce violence in the streets”.

That is incendiary language in today’s climate, but he’s right, and the law is there to provide a peaceful legal path to either the continuation, or the exchange of power.

All Americans are bound by it – including the men who would be "king".

Updated: November 5, 2020 09:01 AM

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