News

7 December, 2020
U.S. Prof. Schultz: Nothing Can Change Biden’s Victory in Presidential Election
Law School

American baseball icon Yogi Berra once declared “It ain’t over till it's over.”  Donald Trump, Republicans, and his supporters can protest all they want, but by the end of December 8th, 2020, the presidential race is over and Joe Biden has won… fair and square. It is now time to follow the sage advice of the American actor John Wayne.

December 8th, 2020, was a momentous day in the 2020 U.S. presidential cycle.  The U.S. Supreme Court rejected President Trump’s request to hear his appeal of the vote results in Pennsylvania. At both the federal district and court of appeals levels , President Trump’s claims of voter fraud were rejected.  In the case of the latter court, a Trump appointee wrote the opinion declaring that there was no evidence presented that there was wide spread voter fraud in that state’s election and therefore there was no case.  In turning the president’s appeal down today, the Supreme Court effectively affirmed that point.

Additionally, December 8th is important for another reason.  Under 3 U.S. Code §5, states that have settled on the method of resolving  electoral college delegate disputes before the election and have the disputes settled six days before the electors meet would have them presumptively upheld by Congress on January 6th, 2021, if there were any disputes.  This law is known as the “safe harbor” provision. With California having certified its election results on December 4, 2020, that put Biden at 279 electoral votes, and with the passing of the  safe harbor date,  states are free to cast their electoral votes on December 14, Biden will have enough electoral votes to win, and Congress will be obligated to certify the electoral vote count on January 6, 2021.

There is nothing that can stop Biden’s victory now.  The Texas Attorney General’s lawsuit on December 8th, seeking to prevent several states from certifying their electoral votes  will go nowhere. The State has no legal standing to challenge what other states do with their electoral votes.  The Constitution gives states nearly complete discretion to allocate their electoral votes in ways they see fit.  Just this spring in Chiafalo v. Washington, --- S.Ct. ---- (2020), the Supreme Court affirmed that point.  Additionally, for anyone who understands American law, Texas has no legal standing to bring the case —it has suffered no legal injury.  The lawsuit is grandstanding at best.

But then again, all of the lawsuits have been that.  President Trump and his allies have lost every substantive lawsuit they brought.  Across state and federal courts, and even with state legislatures, he has had multiple opportunities to show fraud and failed.  The reason why he has failed is simple—there was no proof of fraud.  The courts have adjudicated that. Recounts have proved that and legislative hearings have shown that.  You can’t prove what does not exist.

 December 8th, was the last hurrah for Republicans.  That is why in states such as Minnesota there were final claims of voter irregularity and fraud.  It was one final effort to appease a base of voters unable to accept the fact they lost in a fair election.

 Ross Douthat’s bloated  New York Times essay offers many reasons for the many people who cannot accept that President Trump lost.  But simply stated, cognitive dissonance, confirmative bias, partisan political polarization, and a  pandering fragmented media  in search of audience (and therefore telling them what they want to belief and not what they should know) and profits are the  causes.  It also has not helped that President Trump himself is still in denial.

  What now?  Back in 1960 the American actor John Wayne was a conservative who voted for Richard Nixon. But in 1960 he said this after the election of John Kennedy: “I didn’t vote for him, but he’s my President, and I hope he does a good job.”  John Wayne had many faults, but he was an American first and not a sore loser.  So was Al Gore and Hillary Clinton in 2000 and 2016 when despite winning the popular vote for the presidential election, they lost the electoral vote and the presidency to George Bush and Donald Trump respectively.

  It is time for Mitch McConnell and all the other Republicans in the U.S. to emulate Wayne, Gore, and Clinton.  Put the country ahead of  partisanship and pettiness.  Recognize for good or bad that Joe Biden won fairly, and move on.  It’s over more than ever.