Election Update: 6 Challenges Facing the U.S. (revised) — evening Nov 4

6 Challenges Facing the U.S.

WARNING: Many of you have commented on my grounded optimism in prior posts. This post is a bit more sober — even with the whiskey reference at the end.

As we’ve all heard many times, winning the 2020 general election is just the beginning of 6 distinct challenges we face in saving American democracy — not the end.

You may find it helpful to know the mountains ahead of us on the trail. Identifying them clearly has certainly helped me steel my nerves and my resolve.

It has also been helpful for me to remember that even in a “typical” presidential election, this time of year is deservedly called “the silly season.” The tempo increases; campaigns lob their most scurrilous attacks, and partisans engage in the ugliest whisper campaigns. Some of what we saw and heard really is similar to campaigns of prior cycles. Some of it, well, it was a bit 2020, shall we say.

Tonight, it looks like the call will be made in Pennsylvania, making Joe Biden the President-elect.

We will have made it across the first of the 6 hurdles facing us here in the United States to restore our American democracy:


The 20th Amendment of the U.S. Constitution is clear: The next President of the United States is the candidate that secures a majority of the electors, commonly known as the electoral college; that winning number is of course 270 electoral votes.

As we have been tracking of course, the national popular vote has no legal impact on the winner of the Presidential Election — historically and this year. It’s not all about that bass — it’s about that 270.

For those that quibble with my use of the term “Fascism” here, note that Merriam-Webster says a critical element of fascism is “the forcible suppression of opposition.” The President and his supporters — in Congress and among the populace — frequently rely on the explicit or implicit use of force to suppress lawful activities, whether it be peaceful protests and the democratic franchise of voting or the exercise of free speech. Maybe more on this American Fascism question later.

2. ENSURE PUBLIC CONSENSUS AND LEGAL VALIDATION of this electoral victory, through Jan. 6 Congressional certification of election results.

As we are tracking closely together, each state will need to complete their vote counting in time for their local canvassing boards to formally accept the election results, after which the state canvassing or election boards will need to formally accept the election results. At this point, a recount might be in order in close races — either paid for by tax dollars or by a candidate, depending on each state’s election laws. At one point, the Trump team was ready to pay for a recount in Wisconsin, and then later today they apparently cancelled those plans. Maybe it’s on again? Who knows. But it will cost Trump’s campaign $3,000,000 to chase an insurmountable lead in the Cheese State. (No one actually calls it that, do they? We should. I’m starting that trend here. Ok, maybe not.)

For the Presidential race, all counts, recounts and even election challenges or related lawsuits need to be concluded by December 14. On this date, each state’s electors will meet to formally cast their ballots for President and Vice President. It is these 538 ballots that are the legally binding votes for President.

Electors’ ballots will be kept secret until the new Congress is sworn in on January 3, and when that new Congress meets in a joint session of the U.S. House and the U.S. Senate on January 6. Convened by the President of the Senate — in this case, Vice President Mike Pence in the last two weeks of his term — electors’ ballots will be opened on that January 6 date, and counted. The joint session of the new Congress must legally accept the electors’ votes.

Thus, here’s the challenge: When Biden secures and receives at least 270 electoral votes, Congress must recognize and accept his victory. While the Constitution does establish a process for alternative scenarios, they become fraught with legal complexities and political power plays that the ultimate “winner” will face extreme challenges in being recognized as a leader for the majority of Americans.

And thus, the rarely discussed foundation of our electoral system: The need for public consensus.

Donald Trump has spent years trying to undermine the validity of our democracy and of our electoral mechanics. We must not let him succeed in this attack — at the very moment it matters most. Pennsylvania legislators have indicated their willingness to do the unthinkable; GOP party leaders and legislative leaders have spoken of throwing their state’s 20 electoral votes to Trump even if Biden clearly wins the state.

Thus, as we turn from Election Day votes cast and counted, as a country we need to demand that all public officials — regardless of party affiliation — accept the results of the election. We must insist that every state honor the rule of law by counting every valid ballot cast, and that every state’s electors be consisted with the democratic will of that state’s voters.

Please, contact your Member of Congress and your U.S. Senators. Demand that they publicly stand with the Constitution — and ensure that their state’s electoral votes be allocated to their state’s winner. Our representatives should insist that all 538 electoral votes reflect the people’s will.

3. MITIGATE DAMAGE DONE by current administration during the 79 day period between Election Day and Inauguration Day.

If Biden secures sufficient electors’ votes in the initial count of valid ballots cast by Election Day, the Trump Administration will still hold office for another 79 days, until 11:59am on January 20, 2021.

The Trump administration has shown little adherence to the rule of law to date. The 79-day period until the end of Trump’s term could be unlike any period we have seen in modern history at least.

There are some “guardrails” in place, including for example the Congressional Review Act. However, Trump’s cabinet has decimated the independent Inspectors General inside each agency, leaving Trump loyalists the opening to pursue any number of obscene or self-serving agendas. I am particularly concerned about the audacity of Attorney General Bill Barr and his use of Department of Justice as Donald Trump’s personal attack dogs.

I imagine that the Biden transition team is prepared to proceed with little cooperation from the outgoing administration. I also believe they will be watching every agency action — from the mundane to the most wide-reaching — during the Trump administration’s final 79 days.

4. RAMP UP TRANSITION QUICKLY to immediately move to a science-based approach to controlling the pandemic.

Job One for the Biden administration will clearly be controlling the pandemic through a science-based approach. As VP Biden has said frequently, no economic recovery is possible without containing and defeating the virus.

One can even imagine a newly-sworn-in President Biden walking or driving straight to the Oval Office on January 20 and taking immediate action to put our pandemic response on science-based footing, thus eschewing the ceremonial post-inauguration Senate luncheon at the Capitol.

But there’s no magic, immediate answer to the pandemic. It won’t be enough to just sign Executive Orders, actually mobilize the Defense Production Act and appoint a world-class team of public health leaders — imagine H1N1 leader Ron Klain or former Obama health guru Andy Slavitt at the helm.

Biden will need to use the bully pulpit gently and carefully to increase public support for wearing a mask, for restoring trust in the scientists at the CDC and NIH and establishing a more consistent framework for social distancing guidelines. He will need the support of all of us in changing the tone and attitude around our collective effort.

And he will need to tell some hard truths.

Even with 80–90% compliance with social distancing and mask-wearing, we are anywhere from 6 to 24 months away from anything that resembles our previous normal when it comes to opening schools and colleges, workplaces and offices, and restoring vitality to our service sectors. Biden must give voice to this reality as a kind of national rallying cry to action — just as we may be facing a third peak of the virus in the depths of winter, with cabin fever also reaching its peak.

With any luck, Spring 2021 will feel glorious, with progress on controlling the virus, early success on vaccines, a stable federal public health approach and the end of this long winter.

5. FREEZE AND REVERSE FASCISM at the federal agencies, especially removing any Acting Secretaries who are aligned with the Trump Administration, while security clearances are gained for Secretaries-designate at each agency.

The new President will face a unique challenge with the Cabinet. Like most Presidents-elect, he will very likely roll out announcements for all of his cabinet during December, beginning with key national security, health and economic posts. But he will face two challenges: 1) Even on an accelerated timeline under a Democratic Senate, the Senate may take days or even weeks to confirm the first Cabinet members upon formal nomination by the new President; the Republican Senate, well, let’s see how they respond… and 2) Every agency requires an Acting Secretary to be formally responsible for the department until confirmation.

I have heard from trusted sources in Washington, D.C. that the national security apparatus is so compromised under Donald Trump that new federal appointees will be further delayed in securing proper security clearances. Even returning officials with previous security clearances may still face frustrations during this process. Should Democrats regain control of the U.S. Senate, their first acts may include addressing this national security gap.

The new President is empowered to designate Acting Secretaries at each agency, and political appointees do not typically survive the transition. These Acting Secretaries may by necessity include some of those Cabinet members who served in the Obama administration, to the extent possible (see security clearance issue above). But Trump may attempt to shift political appointees into “civil service” professional positions to continue undermining the public mission of every department. This will require vigilance from outsiders, insider career staffers, and public watchdogs, for every single one of the 79 days.

(Since I drafted the article that spurred this post, President Trump signed an Executive Order that would do exactly what I feared in the paragraph above — turning the civil service into political arms of the White House. Called “Stunning” and “radical”, the Executive Order is already the subject of judicial challenge.)

6. CHART ADDITIONAL REFORMS that are required to prevent fascism taking root in future US Governments.

Donald Trump’s unique American fascism was enabled by his Congressional appeasers; through GOP court-packing, particularly under Mitch McConnell, and through a cursory impeachment trial in the U.S. Senate that included not one single witness and an acquittal of the President despite his own admission to at least one charged offense.

As a nation, we will need to address the cultural forces that allowed us to slide into this abyss, and we will need to address the structural forces that have failed us along the way. This subject requires more indepth writing that I can muster here, for the moment.

As I mentioned in an earlier update, allowing Trump’s enablers to continue to control the U.S. Senate is a real blow. We still have a remote shot of two Georgia Senate seats to be decided in two different runoff elections (provided that Sen David Perdue does fall just below the 50% threshold in the next few hours). But with a Republican majority in the Senate, too much work will remain undone when it comes to address the structural failures that have allowed us to descend this far as a nation.

I am still going to celebrate with that 12-year single malt tomorrow when Pennsylvania is called alongside Nevada, Arizona and Georgia for Joe Biden. But I doubt I will escape the feeling that we have so much more work ahead of us. After a good night’s sleep tonight, I’ll soon be ready for it. Let’s take up this work together.

Impact Counsel attorney, Avisen Legal. Dad. Husband. Former CEO, State Rep, Obama White House Task Force Chair. Still dabbles in pottery. Never been cool.

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