The 2020 election was like no other in modern American history. The massive mail out of ballots, the universal early voting and the warnings of a weeks-long election were extraordinary.
Then came election night and the decision to halt vote that night and other irregular occurrences. Then came the roller coaster of the changes of back and forth as to which candidate was winning over election night and the ensuing days. Then came the projections of state wins, and the final projection of a winner, which was disputed by many with claims of election irregularities.
For many Americans not familiar with the nuances of election law, this whole process has brought a great deal of confusion. Constitutional issues have become far more important than in previous elections, and the American media failed in properly reporting the process. Let me explain.
First, the media did not help the public with understanding the Electoral College system. The founders wanted a buffer between the potential demagoguery inherent in a general election and the benefits of an Electoral College for choosing the nation’s chief executive.
They sought distinguished representative “electors” to be chosen by respective states. Those electors would be expected to best judge the qualities of candidates for the nation’s chief executive. In Federalist 68, Alexander Hamilton explained the advantages of the Electoral College: “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”
With that, Article II of the Constitution directed the following for the determination of electors of the president: “Each state shall appoint, in such a manner as the Legislature thereof may direct, a Number of Electors. ...” A key point, with respect to challenges in this election, is that the legislatures are given the sole authority over the state elections.
For the 2020 election in Pennsylvania, the Republican-led legislature decreed that mail ballots must be received before 8 p.m. on Election Day. The Democratic governor, knowing more Democrats would likely vote by mail, lobbied the legislature unsuccessfully to grant more time.
The governor then went to the majority Democrat-appointed Pennsylvania Supreme Court and was granted an order for ballots received after 8 p.m. on Election Day to be counted. Republicans objected, and petitioned the U.S. Supreme Court to stop counting postmarked ballots. The Supreme Court quickly issued a temporary order directing that postmarked ballots be segregated and set a hearing on the issue.
The Supreme Court likely will hold that postmarked ballots are not legal as a violation of the legislative and also U.S. congressional power to set the uniform time of election. This potential Supreme Court reversal can also have effects on similar issues in battleground states.
From the AP: “Republican legislative leaders and President Donald Trump’s campaign argued the North Carolina State Board of Elections had usurped the power of lawmakers and lessened the weight of ballots cast before the rule change. The final outcome may involve pulling the count of a number of ballots previously counted but without the Legislative requirement.”
Beyond the challenges over the usurping of legislative authority to decide the manner and time of elections, most have heard other allegations of widespread election irregularities. Many individuals have signed sworn statements about voting irregularities they have seen or experienced.
For example, in Pennsylvania a number have sworn that Republican ballot observers were kept away from being able to witness ballots/counting, as is directed by the legislature. Additionally, various “glitches” have occurred with the computer counting of mail ballots, which have disproportionately harmed Republicans candidates.
As reported by CBSN Chicago: “As many as 13,400 voters in Outagamie County made their choice for president and filled out their ballots. But every one of those ballots had a technical glitch and the machine can’t read it. The problem is at the bottom of the ballot. A little black mark about the size of a finger scratch is missing. That nick prevents the ballot from being read by the machine.” This glitch harmed a solidly Republican county. The 14th Amendment equal-protection clause allows candidates recourse to the federal courts when alleging unequal treatment.
These various issues have brought challenges, even after many media sources have “called” the election for Joe Biden. During the last contested election with Al Gore trailing in 2000, the media waited 37 days for Gore to exhaust his legal remedies before declaring Bush the president-elect.
The media “call” for Biden is based on projections and not determination of the actual number of electors for either candidate or of the electors and without forecasting legal challenges. Previously, presidential elections were determined based overwhelmingly on ballots cast on Election Day with tight restrictions. In all other modern elections, excepting Bush vs. Gore of 2000, the Electoral College numbers were clear enough, and without razor thin margins on election night. The trailing candidate conceded the race and both sides accepted the results.
On election night 2020, when voting was halted with a seeming Trump win, the media told America to be patient and for every vote to be counted. Despite Republican anger over the halted voting while Trump was surging, reporters warned that it could take weeks before counting was complete and any court challenges decided.
When the election appeared to flip to Biden over the next two days, Democrats began the pressure of the race being called. Three days after the election, and only hours after the Supreme Court ordered Pennsylvania's postmarked ballots segregated and set a hearing, the AP and then the other mainstream networks called Pennsylvania for Biden. They then declared Biden president-elect. The warning to have “patience” from Tuesday night was ancient history.
Three observations about media reporting of the election:
One, massive and nationwide mail ballots cause havoc with the perception of our election and a clean determination of the president-elect. They are open to fraud, “glitches” and constitutional violations in the process.
The media attacked any criticism of mass mailing as an “attack on democracy.” They should have investigated and reported potential problems.
Two, the media must get back to precise reporting with journalistic objectivity. “Forecasting” a winner of a state should not equate to a candidate “winning” a state before concession and/or legal challenge.
Forecasting a president-elect does not make one a legal president-elect, particularly with razor-thin margins. Only when Congress meets in January and counts the votes do we have a legal president-elect. In practice, if a candidate concedes or legal challenges ended, identification of a president-elect is appropriate.
Third, Americans must become better educated about constitutional systems like the Electoral College. The media should help educate, yet they further misunderstanding. Our nation and constitutional system are sound, but the media need to do better to help keep it going strong.
Bill Connor, an Army Infantry colonel, author and Orangeburg attorney, has deployed multiple times to the Middle East. Connor was the senior U.S. military adviser to Afghan forces in Helmand Province, where he received the Bronze Star. A Citadel graduate with a JD from USC, he is also a Distinguished Graduate of the U.S. Army War College, earning his master of strategic studies. He is the author of the book "Articles from War.”