America is in for a melodramatic end to the pandemic year. The US presidential election is turning nasty and may have a messy outcome. The New York markets were down in September – the first monthly decline since March. Victor Hill is on the case.
Why the presidential election could be contested
This year more American voters will vote via mail-in ballots (i.e. by post) than ever before – indeed many have already done so. The reasons for this are obvious. Firstly, the coronavirus pandemic has necessitated social distancing and many people, particularly older folk, wish to avoid crowded public spaces altogether. Secondly, widespread social disorder in the wake of the BLM protests have discouraged many people from venturing into city centres where polling stations are normally located.
But postal voting can be subject to perverse practices – British readers know that there have been numerous scandals involving postal votes over at least the last three general elections here. President Trump has gone further – he has consistently sought to delegitimise postal voting, perhaps because he thinks it will work against him, and perhaps because he is actually preparing for a contested election.
In recent elections the Republicans have tended to do well in the early count but have then slipped back as the postal votes come in which favour the Democrats. And recently, some incidences have been reported of suspected voter fraud. In mid-September three boxes of absentee ballots that never reached voters were discovered in a post office outside Milwaukee. Mr Trump has made it clear that he intends to litigate to invalidate postal votes with any technical irregularity. He has urged his core supporters to vote in person.
Barton Gellman, in an essay published on 23 September for The Atlantic, catastrophises the forthcoming US elections, warning that “conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights.”
I think Mr Gellman and his disciples are alarmist. It is true that outgoing presidents can wreak havoc during the interregnum between election day and inauguration day. Herbert Hoover in 1932-33 set out to sabotage incoming president Franklin D Roosevelt’s New Deal. It should be noted that, prior to the 20th Amendment to the US constitution (1933), inauguration took place on 04 March – not 20 January. During the Hoover-Roosevelt interregnum, Hitler was appointed Chancellor in Germany and the Japanese Empire invaded Manchuria. Modern catastrophists speculate that during a turbulent Trump-Biden interregnum, China might seize Taiwan or Russia might lash out against Turkey…
The messy end scenario
Mr Trump’s opponents are talking up the prospect of a disorderly end to Mr Trump’s presidency for their own purposes. They suggest that if the election is contested then Mr Trump will refuse to concede and will just barricade himself in the White House – and will only be dislodged by public disorder. Mr Trump himself has mischievously encouraged speculation of this kind by refusing to rule out a protracted legal challenge if he loses to Mr Biden on 03 November. He has even refused to disavow that he would invoke the Insurrection Act of 1807 to grant himself emergency powers.
There is a fear in some quarters that a disputed election will rock the markets. This is certainly a risk; but according to some analysts it has been overstated. On 23 September, Interactive Brokers said it was raising margin requirements to protect itself and its clients against a potential increase in volatility over the election period. This may have contributed to the market’s sell-off that day.
But the US constitution is designed to force a result within weeks of the election. If he loses, Mr Trump will not be able to cling on in office without legal sanction – if necessary, from the Supreme Court itself. That was the case with the 2000 presidential election when the contested electoral college votes of the State of Florida finally tipped the balance in favour of George W Bush and against Al Gore after five weeks of wrangling. Florida was compelled to carry out a recount from which Mr Bush emerged victorious by just 537 votes.
This week, Ms Pelosi, the Speaker of the House, reminded congressmen that if there is no official presidential winner by 06 January 2021, then the House of Representatives could be tasked to conduct a vote to select the 46th President[i]. But the vote is not as straightforward as Democrats having the overall majority of the 435 voting seats. Each state would get a single vote, which would be determined by the party that has the majority of members from that state in the House. California has 53 seats; but many states, such as Vermont, have only one seat. In this special election Vermont could cancel out California’s vote. Ms Pelosi is therefore lobbying for more campaign funds to be released for the congressional elections. “It’s sad we have to have to plan this way, but it’s what we must do to ensure the election is not stolen”, she wrote in an email to Democratic members of the House.
The last time a presidential election was determined by Congress was in 1877 further to the contested 1876 presidential election between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York. Hayes emerged as the winner after the Compromise of 1877 by which the Democrats conceded the election to Hayes in return for an end to the Reconstruction era and the withdrawal of federal troops from the occupied South (i.e. the confederate states defeated in the American Civil War of 1861-65. Those troops were largely there to protect emancipated slaves.)
The chance of the presidential election going to the House is extremely unlikely. But Mr Trump referred to this constitutional end point at a rally for supporters in Pennsylvania last weekend, saying that the Republicans would have the advantage. What he meant was that, although the Democrats currently enjoy a majority in the House of Representatives (235-199) Republicans represent the majority of House members from 26 states, while Democrats have a majority in just 22 states. Another two states, Michigan and Pennsylvania, are currently tied.
So, to recap: if the electoral college outcome were contested by virtue of blatant voting fraud; and if the Supreme Court were judicially unable to decide the outcome, then the choice of President would go before the House. It is unimaginable that Mr Trump, whose term of office formally ends at noon on 20 January 2021, would refuse to resign if this congressional mechanism went against him. The idea that the US military might have to undertake some kind of coup d’état to displace a recalcitrant President Trump is just fantastical.
To date, the 2000 presidential election is regarded as the closest ever. It is worth noting that Mr Gore actually polled 543,895 more votes than Mr Bush in the ballot – just as Mrs Clinton polled almost three million more than Mr Trump in 2016. In all, there have been five US presidential elections since 1788 in which the winning candidate lost the popular vote.
Many presidential elections have not been determined on the morrow of the election and indeed we may well not know the formal outcome this time on the morning of 04 November as many mail-in (postal) votes will still remain uncounted. My own best guess is that the electoral college vote will be tight and that we may not know the official outcome until the weekend of 06 November. Constitutionally, according to the Congressional Research Service,counting the votes may be extended until 14 December in the event of recounts being required. 14 December is the date on which the Electoral College delegations meet and vote, at which point the winner is formally declared.
Some states permit faithless electors while others prohibit them. A faithless elector is a member of a state’s electoral college who votes for a presidential candidate other than the one he or she has pledged to support. After the 2016 presidential election, Hillary Clinton lost five of her pledged electors while the Republican Party nominee and then president-elect, Donald Trump, lost two[ii]. On 06 July this year the Supreme Court ruled in Chiafolo v. Washingtonthat state laws penalising or replacing faithless electors are constitutionally valid.
While there is a risk that an unconvincing result will trigger street protests, the experience of the last 50 years suggests any such unrest will have little or no effect on financial markets which have remained sanguine despite the pandemic and the nation-wide protests so far.
Cleveland, 29 September: septuagenarian gladiators
It is the first presidential debate that really matters. Everyone knew that Joe Biden’s team would advise him to come out hard into the ring swinging punches because they knew that Donald Trump was going to get personal. Biden, after a relatively fluent start, appeared to falter after about 45-50-minutes in. This is where Mr Trump went wrong by continually interrupting both his interlocutor and the unfortunate moderator, Fox News’s Chris Wallace. By so doing Mr Trump left Mr Biden with no room to stumble, as he almost certainly would have done. There were at least four moments where Mr Biden appeared to be somewhat bewildered and struggling to respond – but each time he was rescued by Mr Trump’s interruptions.
As expected, there were several moments where Mr Biden appeared to be losing his train of thought. He did not give straight answers to most questions. He looked tired and pale. He refused to answer the question of whether he would appoint additional judges to the Supreme Court if Mr Trump succeeds in pushing through the nomination of Amy Coney Barrett to succeed Ruth Bader Ginsburg as Associate Justice. He did not denounce the acts of ANTIFA, claiming it was not a group but merely an idea.
Dualling with the moderator made Mr Trump look petty, especially given that Mr Wallace was just adhering to the protocols that both campaigns had agreed to. He resorted to personal attacks and did not coherently explain why American voters should give him a second term in office. He did not answer the question about his tax return – although many Americans do not regard this as a major issue. He failed to condemn outright white supremacists and appeared to defend a sinister group called the Proud Boys.
It is unlikely that the dial was pushed much in either direction by this spectacle. Core Trump supporters and loyal Democrats will not have changed their voting intentions. But The question of who won a TV debate is always subjective. The mainstream media put Mr Biden ahead, but many would disagree. Telemundo’s Spanish-speaking TV viewers reported two-to-one that Donald Trump won the combative presidential debate on Tuesday night[iii].
In the presidential election of 1960, there was a famous confrontation between Senator John F Kennedy and incumbent Vice President Richard M Nixon. Radio listeners pronounced in favour of Nixon, while TV viewers overwhelmingly thought that Kennedy had won. What the radio listeners could not see was that Nixon was sweating profusely under the glare of the studio lights: for TV viewers this only confirmed Nixon’s reputation for shiftiness.
Truth will out
Will Mr Biden win in November as the polls suggest? I don’t know. It does appear Mr Biden’s lead is narrowing in the swing states of Michigan, Wisconsin and Pennsylvania. But I’m pretty sure of one thing: you can’t trust the polls.
I hear that Trump supporters in many neighbourhoods right now are afraid of putting MAGA posters in their front windows for fear of having their houses burnt down. There is a flight from town to country on a much bigger scale than the equivalent migration in the UK. A New York writer friend of mine is finally done with the Big Apple – he just can’t take the casual disorder and the night-time shootings. He’s off to Florida. Another friend tells me that every pharmacy in Washington DC has been looted.
There are a lot of shy Trump supporters out there. And there is an enthusiasm gap on the Biden side: there are people who tub thump for him but will not bother to vote.
A long-standing mantra has held that so long as the stock market surges, Trump will do just fine. Well, the stock market has held up. A lot of people fear that a left-wing agenda under Mr Biden might threaten that. For sure, Mr Trump’s tax cuts would be undone. There would be stricter regulation of Silicon Valley. A lot of Americans will ask how much Mr Biden’s battle for the soul of the nation will cost before they cast their votes. Mr Trump has maintained the polling advantage on economic competence.
And he has also not started any new wars – and even brokered a peace treaty between Israel and the Gulf states – for which he has gained little credit in the mainstream US media. That will harness not just the Jewish vote but those of Arab-Americans as well. Indian-Americans (an increasingly important demographic) love him too. But then most Americans don’t vote on foreign policy. They are too confused about it. Republicans believe that China is an ogre and Russia is a pussy; Democrats believe that Russia is a fiend and China has cool gymnasts. There will come a moment when America must decide who its enemies really are.
If Mr Trump has taken the Republicans to the right, the Democrats have retreated in the other direction. The BLM+ social movement has further taken the Democratic Party hostage to the social, often militant, left. It is now a cliché to say that America is not just divided but polarised. That is why, whoever wins this election, many Americans are going to be left feeling fearful.
At around 06:00 UK time this morning President Trump tweeted that he and the first lady had tested positive for coronavirus and were now in quarantine. Many will say that by attending numerous rallies where social distancing and mask-wearing were little observed exposed him to risk. The campaign will now take on a different tone. Markets are down in early trading. It is not known how this development will impact the second presidential debate, which is scheduled for 15 October in Miami, Florida.
[i] See: https://www.npr.org/2020/09/28/917730388/pelosi-prepares-democrats-for-rare-possibility-the-house-may-decide-the-election?fbclid=IwAR3KV6Y3AnE2nFrT9NQikHbd8FEBHNtPmXCxbqs8dPIL-0mT0ptqsbbIx80&t=1601560898513