On 20 January 2021, Joseph R Biden Jr will take the oath of office as the 46th president of the United States. The crucial deciding votes will long have been counted. Challenges in the courts will have been dismissed. His victory in the election will not have been in doubt.
While the irresolution of election night seemed to hold the possibility of repeating the trauma of 2016, when all the ballots are finally counted Biden’s victory will represent a substantial rejection of Donald Trump.
Trump speaks of the supreme court as his personal instrument, like he talks of ‘my generals’
Early in the morning after the election, after Trump tweeted, “A big WIN!”, he stepped before the Klieg lights at the White House to make good on his promise not to accept the judgment of the voters if he might lose. He staged his own coronation by press conference. “This is a fraud on the American public, this is an embarrassment to our country, we were getting ready to win this election. Frankly, we did win this election,” he proclaimed. He acted as though he could wave away the votes that were still being counted, just as votes have always been counted in the hours and days after an election. Trump declared: “We’ll be going to the US supreme court – we want all voting to stop.”
Trump speaks of the supreme court as his personal instrument, like he talks of “my generals”, as when he ordered Gen Mark Milley, chairman of the joint chiefs of staff, to march in uniform in his Praetorian Guard through the teargas aimed at racial justice demonstrators in Lafayette Park, across from the White House, to stand in front of St John’s Church brandishing a Bible whipped from Ivanka Trump’s Max Mara handbag.
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“I think this will end up in the supreme court,” Trump said last month about the election when he appointed Amy Coney Barrett, the rightwing ideologue, to the court. The justices are expected to perform as employees of the Trump Organization. Even if he cannot force them to sign non-disclosure agreements, which he imposes on White House staff, he expects more than the three on whom he has bestowed his favor by naming them to the court to demonstrate their unswerving loyalty and maintain his power.
The Organization for Security and Cooperation in Europe sent a team to view the American election, a routine exercise they have performed nine previous times. But this time they were shocked by what they observed. “Nobody – no politician, no elected official, nobody – should limit the people’s right to vote,” said Michael Georg Link, a member of the German parliament who led the group. “Baseless allegations of systematic deficiencies, notably by the incumbent president, including on election night, harm public trust in democratic institutions.”
Trump’s actions to stop or suspend the counting of votes and to certify the results is precisely the classic transgression for which the US has rebuked tinpot dictators, including in the state department’s annual Country Reports on Human Rights Practices. Trump’s call specifically flies in the face of Article 23 (b) of the American Convention on Human Rights, of the Organization of American States, to which the US is a signatory, which guarantees the right “to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters”.
Trump’s election suppression effort bears a curious and striking similarity to that of the lunatic “magician” president of the Gambia, Yahya Jammeh, who in 2016 rejected the results of an election he lost, called for it to be nullified, and appealed to judges he appointed to the supreme court to rescue him. Awaiting their ruling, he deployed troops in the capital. Like Trump, he attacked freedom of the press, demonized migrants, was accused of sexually assaulting women, and advocated snake-oil remedies for diseases. Under the pressure of international condemnation, including from the African Union and the United Nations security council, he was forced to give up the presidency and flee.
On Wednesday afternoon, 4 November, minutes before the Wisconsin elections commission announced that Biden had won the state, Trump’s campaign filed a court complaint demanding a recount. He has also called for stopping the vote counting in Pennsylvania and Georgia, where he was momentarily ahead, and to continue the counting in Nevada and Arizona, where he was behind.
Trump may ultimately try to hang his cases on the infamous Bush v Gore decision that handed the presidency by US supreme court fiat to George W Bush. In the contested Florida recount of 2000, the court ruled that the Florida supreme court had exceeded its authority in interpreting state law by calling for a statewide recount. The ruling written by Antonin Scalia cited the 14th amendment’s equal protection clause, asserting that recounting the votes would cause “irreparable harm” to Bush by casting “a needless and unjustified cloud” over his legitimate election. He also stated that Bush v Gore should never be considered as a precedent for any future decision. Later, he privately confessed that his opinion was, “as we say in Brooklyn, a piece of shit”.
If Trump is hanging the election outcome on Bush v Gore, it is a slender reed that depends upon the counting of the votes
Three of the lawyers working for the Bush campaign in the Florida contest now sit on the supreme court: John Roberts, Brett Kavanaugh and Amy Coney Barrett. The week before the election, on 26 October, Kavanaugh repeatedly cited Bush v Gore in a “shadow docket” case, Democratic National Committee v Wisconsin state legislature, which vacated a federal appeals court decision that had extended a ballot deadline in Wisconsin. As though he had coordinated with the Trump campaign, Kavanaugh translated its talking points into his concurrence, arguing against counting votes past election night because there would be “chaos and suspicions of impropriety … if thousands of absentee ballots flow in after election day and potentially flip the results of an election”. (Justice Elena Kagan pointed out the absurdity of Kavanaugh’s illogic: there could be no election result to “flip” until the ballots were counted.)
If Trump is hanging the outcome of the election on Bush v Gore, it is a slender, brittle reed that, regardless of the fact that it was never supposed to be cited again, depends upon the counting of the votes in the first place.
One after another, the states’ ballots will be counted. The results will be known. They will be certified. And Biden will be declared the winner. Trump’s attempt to crown himself king will be his last failed reality show. Instead, he will be the first president since Benjamin Harrison to have lost the popular vote for president twice, the first time paradoxically as the winner but the second as the natural loser. Trump will soon be, as the poet Wallace Stevens wrote, “the Emperor of Ice Cream”.