It is unlikely that the courts will change the vote count
The 2020 election in the US completed the voting for the most part on November 3. At present, the votes are being counted. All but five states have completed the count. There remains in these 45 states checking and cleaning up, but the outcome is eventually established.
The state legislatures will send these results to Congress. The remaining five states should complete counting in a few days.
The voting rules in the US allow three ways to vote: (1) Show up at a polling station and cast your vote; (2) early voting is allowed so one can go to a polling box and drop your ballot a few days before election day; (3) you can obtain a ballot through the mail and send the ballot back through the mail.
This year due to the Covid-19 pandemic, many persons wanted to use the mailed ballots so as to avoid the risk of the crowd. The Democratic voters seem to have preferred the mailed voting much more than the Republicans. Perhaps this was a result of Trump’s criticism of the mailed voting.
Counting on election day dealt with the mailed votes in two different ways. Some states such as Florida counted the early votes before or during election day. Such states were able to announce the outcome rather quickly after the voting was closed. But other states such as Wisconsin, Pennsylvania, and Michigan counted their mailed ballots after first counting the votes cast on election day.
As a result, the total voting in the state takes much more time and some of the counting is just being completed. The announcement of the progress towards counting the votes showed the consequences: At first, Trump seemed to be winning as the votes from election day were announced; then as the mailed votes were counted, the count shifted in favour of Biden; what some American political scientists have called “The Blue Wave.”
Over the last two days, we have seen this Blue Wave overwhelm the early Trump vote reports.
For the Congress
Senate 48-48. The two Senators from Georgia will be chosen in a runoff election in early January.
The House of Representatives will continue to be controlled by the Democrats, but the Republicans will increase the number of seats that they hold.
The Republican Party did much better than was forecast. There is widespread support for Trump. The difference in the popular votes comes to 3% almost the same as in 2016.
Judicial action by the Republicans
What one reads is that the Republicans will try to stop counting in Pennsylvania, Georgia, Michigan, and Wisconsin. Counting is essentially finished in the last two states. However, there is always checking and picking some ballots here and there. When there are millions of ballots around there are always small examples of mishandling but these are not systematic.
I do not think any court will stop the counting. In the Bush-Gore case in 2000 the court stopped the recount, not the original count. The voting regulations are the responsibility of the individual state and the oversight of the election is a matter for the state court system.
Cases go to the federal courts only when there is a constitutional issue or a federal law involved. In the case of Bush vs Gore there was an appeal from a judgment by the Florida Supreme Court. But there are no major rulings at a level to get access to the federal court system.
No doubt the Trump lawyers will find the means to get these matters into court. But the legal challenge to Biden’s winning is going to be difficult to develop. If Biden wins comfortably in Pennsylvania the rest of the states with incomplete counts will not change Biden having more than 270 votes in the electoral college. Biden’s winning position will be preserved.
Will the courts change the apparent outcome of the voting? I have suggested above that this is unlikely but the legal issues are complex and one should be cautious in ignoring this possibility. After all, the Supreme Court handed the presidency to George W Bush on a vague and unconvincing legal argument.
If Biden wins the presidency, what is going to happen between his inauguration on January 20 and now? Can a stimulus bill be passed or will parties play politics leaving large numbers of Americans to face medical and financial hardships?
With the outcome of the Senate in doubt, the next few weeks will see a brutal political battle mounted in Georgia. This will probably open wider the wounds of American politics so it is unlikely we will move towards a better relationship.
Finally, and most important -- the world and the United States are fighting a terrible pandemic that is doing immense harm to our societies and leading to many deaths. Finding the path between reducing the spread of the disease, improving treatment, identifying vaccines, and getting them distributed all while keeping the economy open is a challenging job.
Forrest Cookson is an economist who has served as the first president of AmCham and has been a consultant for the Bangladesh Bureau of Statistics.