Joe will have to be bidin’ time

Outcomes of US presidential elections are not decided by media, or celebrations or foreign leaders’ acclamations. Democratic Party candidate Joe Biden will most likely be the official winner. But the process has some way to go before the 20 January inauguration.

At the time of writing, President Donald Trump’s team is still filing lawsuits alleging voter fraud and other irregularities. Vote counting continues. It is possible that a final decision will depend on the politically skewed US Supreme Court, where conservative, Republican-leaning judges outnumber liberals six to three.

The president is not elected directly but by an electoral college, where 270 votes secure a majority. On 14 December, the designated electors are due to meet in their respective states, where they will vote for president and vice-president on separate ballots. At least six days before that, states must make final decisions over the appointment of their electors.

Controversies over the choice of electors must be resolved by the respective states’ courts. If Trump adopts Jacob Zuma-like “Stalingrad tactics” by fighting every corner, there may be legal contests at this point too. There has been debate about whether members of the electoral college may vote for whomever they please, regardless of instructions from the party that sent them there.

According to archives.gov, “there is no constitutional provision or federal law that requires electors to vote according to the results of the popular vote in their states. Some states, however, require electors to cast their votes according to the popular vote”.

Yet, in August 2019, the United States Court of Appeals for the 10th Circuit in Denver ruled that:“The text of the constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the president and vice-president candidates of their choice”.

It is therefore not impossible that Trump supporters could contrive to subvert the electoral college vote. On 6 January – a day after the Georgia Senate runoff elections – Congress is due to meet in joint session (Senate and House of Representatives), to count electoral votes. Here again there is an opening for objections, where Trump supporters can cause trouble.

Although the House has the final say in the presidential election at this 6 January meeting, there is a distant, outside chance the Senate would end up electing the vice-president by majority vote, if there were enough disruptions leading up to this point. Imagine. Media say all allegations of voter fraud and other irregularities are baseless.

However, if the allegations are made in court documents and courts decide to hear these matters, it will be for the courts to rule on their veracity. The Biden campaign, eager to capitalise on momentum, is pushing the General Services Administration (GSA) to approve a transfer of power – and hence money – for an envisaged transition.

But the GSA has said it will make an “ascertainment” only when satisfied that all statutory requirements under the Presidential Transition Act are fulfilled. So, Joe will have to be bidin’ his time. Many a slip ’twixt cup and lip.

Martin Williams, DA councillor and former editor of The Citizen.

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