The states — not the media — determine election outcomes

Democratic Party leaders and the liberal mainstream media enthusiastically announced the end of the presidential election when The Associated Press and other major news outlets called Pennsylvania — and thus the country — for Democrat Joe Biden. 

While parts of the country erupted in celebration, there’s just one problem: We do not have a president-elect yet. The states decide when a presidential election is over, not the media and not partisan political party leaders. Article II, Section 1 of the Constitution, which governs presidential elections, makes no mention of the media trumping state decision-making. These words used to be fairly uncontroversial. Today they are enough to incite hatred, division and discord. The situation surely will come back to bite us if the states decide that they disagree with the pronouncements put upon them by the mainstream media. 

The words in the Constitution are clear: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors … .” All state legislatures have chosen popular elections for this purpose, which means that the election in a state is not over until all recounts, legal challenges and audits are complete.

Each state must make its own determination on this score. At this writing, at least seven states are not finished. We can speculate about what will happen, but we don’t know the final outcome in these states. 

North Carolina and Arizona are still counting. Pennsylvania has outstanding concerns about ballots that were collected after Election Day. Supreme Court Justice Samuel Alito has ordered that these ballots be set aside. Georgia’s margin is close enough to allow a recount, as is Wisconsin’s. Michigan, Pennsylvania and Nevada could be affected by claims that GOP poll watchers were denied the opportunity to monitor various aspects of the ballot count, that some ballots allegedly were illegally backdated or counted despite irregularities, or that software glitches may have affected the counts.

Perhaps these claims will amount to nothing. Or maybe there has been enough fraud to affect the election in specific cities such as Detroit and Philadelphia. The truth is that no one really knows, but we have a legal process designed to find the truth.

The Constitution does not give the media authority to decide when this process ends. The Constitution puts each state in charge of itself, and state legislatures are responsible for making sure their states are fairly and accurately represented in the Electoral College. No one else, not even a governor, can trump this constitutional text. 

Modern Americans have forgotten that the Constitution creates a presidential election system that is deliberately decentralized. Power is dispersed among the states. Historically speaking, states took their role in presidential elections quite seriously.

Massachusetts once had a rule requiring the state legislature to choose electors if no one could get a majority of the state’s popular vote. Wyoming made its own independent decision in 1892 when it decided to let women vote; it was the first state to take such a step and did not consult with New York or Pennsylvania before adopting such a measure.  

A presidential election is a state-driven process: “[T]he electoral college system as embodied in the Constitution,” Justice Thurgood Marshall once affirmed, “contemplates the election of the President and Vice President not by the Nation as such, but rather by the individual States.”

Florida legislators knew this in 2000 as they prepared to defend their state following a tumultuous recount. For a time, it seemed that Florida’s recount would not conclude in time for the meetings of the Electoral College. Legislators prepared for the possibility that they would need to appoint electors directly.

The 2000 recount ultimately did not change the answer in Florida. It appeared that the state would go to George W. Bush, and it did. Nevertheless, the process was important. 

First, it helped to ensure that no mistakes were made. Free and transparent elections are vitally important. If the rule of law can be shrugged off in one year because the media thought the answer was obvious, then the rule of law can be shrugged off in other years, too. None of us wants to be on that slippery slope.

Second, going through the complete recount process in 2000 helped the nation to better accept what had happened. Americans need this certainty today, too. It will help voters to get behind whoever is elected and sworn in on Jan. 20, 2021. If Joe Biden won the election, then he will still be the winner after all the recounts and legal challenges are over.  

The rule of law matters. Without it, we are no longer a free people.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including “Why We Need the Electoral College.” Follow her on Twitter @TaraRoss.

Tags 2020 election Donald Trump Electoral College Joe Biden Samuel Alito US Constitution Vote counting

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