Terry McLaughlin: The day before election
Due to publication deadlines, this column is being submitted to The Union on the day prior to the national election, and being read on Nov. 5 — two days after the election.
It is very likely that none of us yet know the actual outcome of the national election, nor local or state elections in California, since the election officials in our state have deemed it appropriate to accept ballots up to Nov. 20, as long as they are postmarked by Nov. 3.
Evidently, our secretary of state, Alex Padilla, has so little confidence in the U.S. Post Office’s ability to deliver our ballots in a timely manner that he is providing a window of an extra 17 days.
If this national presidential election is as close as pundits are predicting, it may be weeks or months before we have any certified election results. In the meantime both parties will have lawyered up and filed lawsuits in multiple states throughout the nation. It’s not a pretty picture, but it’s certainly not the first time that our nation has traveled this rocky road.
Anyone over 35 remembers “hanging chads” and the battle in 2000 as the votes were counted and recounted in the presidential campaign between Texas Gov. George W. Bush and Vice President Al Gore.
The race had deadlocked, and Florida’s 25 electoral votes would determine who won. Both parties at the time were entrenched in the Florida state government. The secretary of state, Katherine Harris, was a Republican. Conversely, the state Supreme Court at the time was composed of six Democrats and one independent who regularly sided with the Democrats on the court.
The conflicts over hanging chads and double-punching and fraud went on and on, with George W. Bush ultimately winning that race with just 537 votes. Who could have predicted that 537 votes in one state would have been so consequential to the entire national election?
The American system for electing a president is somewhat convoluted, and one fundamental reason for this is that there are actually 51 systems, because each state and Washington, D.C., has different election laws.
Actually, there are more than 3,000 systems, because each county within each state has its own local specifications. This means that there are a lot of rules to keep track of, and it can be difficult, if not impossible, to anticipate which of those rules will become the most important as the votes are being tallied.
Elections are at the very heart of democracy, so you would think that election laws would be clear and straightforward. Unfortunately, that often is not the case.
In Florida in 2000, a seemingly minor discrepancy in the state’s election law became a pivotal issue. Florida state law set a seven-day deadline for counties to finalize their vote tallies after Election Day for submission to the secretary of state, but during litigation it was discovered that there were actually two laws that addressed that deadline.
One law said the secretary of state “shall” ignore late election results, but another statute said the secretary of state “may” ignore late election results — which could be interpreted to mean that he or she was not required to do so.
These kind of inconsistencies can clog the legal system, slow down the recount timelines, and allow partisan officials to make judgment calls. In the meantime, the two major party campaigns will be trying to spin every development to their advantage.
The Electoral College is mentioned in the Constitution and elucidated in U.S. Code, but the rules for seating presidential electors can be confusing, especially in a contested election when the winner is not settled upon for weeks.
In Florida in 2000, as the date for seating electors neared, both sides began devising elaborate contingency plans. Florida Republicans started preparing for a result in which the state’s GOP-dominated legislature would simply seat Florida’s 25 Republican electors if the vote total still wasn’t settled.
Florida Democrats were devising a potential plan of their own to respond to this, which Al Gore adviser Ron Klain described as Plan X in an interview with Politico. Plan X was based on an interpretation of Florida state law which said that the state’s electors had to gather in the Statehouse to cast their votes for president.
At that time, Florida technically had two statehouses, the official statehouse and one that had been retired in 1978 and converted into a history museum. Plan X called for reserving the old Florida Statehouse to stage a ceremony of Democratic electors there. The votes of those Democratic electors would be sealed in an envelope, as would the votes of the Republicans from the official statehouse, and forwarded to the U.S. Senate for the official processing of electoral votes.
By law, the person who presides over that official Electoral College count, and who would decide which of the two envelopes to open, was the president of the Senate, also known as the vice president — 2000 Democratic presidential candidate Al Gore.
It is not hard to imagine that the 2020 election counts will bump up against the Electoral College deadline of Dec. 14, opening up a host of plans from both campaigns to manipulate the Electoral College. And as an interesting aside — Ron Klain, the former Al Gore adviser involved in Plan X, is currently a senior adviser on the Biden campaign, and reportedly the frontrunner to become Biden’s chief of staff.
Terry McLaughlin, who lives in Grass Valley, writes a twice monthly column for The Union. Write to her at email@example.com.
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