“It Is Tense, and Likely To Become More Tense Before It Is Over” – conversation with Jesse Richman

When we last spoke right before the election, you predicted that Americans would face a tense November. As it turned out, President Trump initially seems to have won big, but Biden is gradually closing the gap. So the election does turn out to be tense. How do you see the current situation?

It is tense, and likely to become more tense before it is over.  The lawsuits and protests are just beginning, and they are going to grow in intensity.  It remains possible that a clear victory by one candidate or the other will become apparent, but escalation and grievance on the part of the losing side seems likely.

Although we don’t yet know the final vote totals, this has the potential to be several times as contentious as the 2000 battle in Florida

as there are more states that could potentially be subject to dispute, and U.S. politics is much more polarized.

What are the major lessons to be learnt from this and other historical precedents?

In Florida Bush defeated Gore only after a long period of dispute, vote counting, lawsuits, and anguish. That election came down to a few hundred votes and the outcome hinged on a Supreme Court decision which some Gore voters saw as illegitimate. Something similar could happen again in the right circumstances.

If disputes over mail-in ballots become intense and gain legal traction, we could potentially see election results thrown out in particular places as has happened in smaller races at times.

Reforms since 2000 have created a bit more of a regularized process for recounts in disputed elections.  Hopefully this helps regularize what is to come.  Recent history with recounts suggests that baring some very shocking revelation of fraud or a dramatic rules change, there is little prospect for any but the very closest contest getting reversed. But even if the ultimate result doesn’t change, there can be other consequences of disputing election outcomes including loss of trust, perceptions of illegitimacy of the victory, further political polarization, and even civil unrest.

How do you envision the potential outcome of this election? The President and his team claim that the deadline for mail-in-votes set by the states’ Supreme Courts in Pennsylvania and North Carolina are not in line with the requirements of the federal Constitution and thus they open the possibility for fraud. How do you see the chance that this election will end up before the Supreme Court of the US?

As I anticipated before the election, the lag in counting mail-in ballots generated an apparent Republican victory that then began to rapidly erode as the mail-in ballots were counted.  For now, the outcome remains uncertain because not all mail-in ballots have even been received, let alone counted. Biden appears to have the best chance of winning, however.In any case, there will be many lawsuits filed in the next few days. Where lower courts and other officials acted to change voting rules, or acted in ways that can potentially be construed as violating election rules, I expect challenges will be brought, especially but not exclusively by the Trump legal team.  Consequential lower-court rulings will be rapidly appealed, and some cases will most likely reach the Supreme Court.  Because John Roberts is less likely to be the swing vote now, there is more chance for a high consequence case that helps Trump even as it puts the court reputation at risk.

How do you evaluate the Congressional election?

Which party will emerge victorious and will have more influence in 2021?The most likely outcome is maintenance of the status quo in Congress. The Senate will likely retain a Republican majority (albeit a narrower one) although the ultimate outcome may not be known until a runoff election in Georgia.  The House will almost surely retain a Democratic majority.  As a result,

no matter which candidate wins, the president will be constrained by the need to find compromise with Congressional leadership from the opposite party.

The result will be deadlock on many issues because it seems that the parties are increasingly unable or unwilling to compromise.  I do expect an additional Covid-19 response measure to pass Congress in any case, however.