The winner is still undecided in the US presidential elections, as some states have yet to announce their final results. This situation has triggered confusion, especially given that both candidates, Donald Trump and Joe Biden, have already declared that they are on the path to victory.
It's Electors Who Officially Determine the Winner
"Contrary to what many might assume, the American people do not directly choose the president and the determination of the winner of a presidential election is not when the media declares a winner or when the apparent loser concedes," says American independent journalist and political analyst Max Parry. "In fact, Election Day itself is the voting for electors from each state, the governors of which draw up a list to the electoral college once all of the in-person, provisional and absentee ballots are counted."
The electors then officially meet the following month in their respective state capitals to vote for the president, and then in January the election is certified by Congress, the journalist underscores.
It can't be ruled out that that if Biden is declared the winner by his campaign and the media in the coming days "the state legislatures in undecided states could explore the legal ambiguity of the electoral college process and attempt to appoint pro-Trump electors anyway", according to Parry.
"All of the contested states have legislatures in which both houses have GOP majorities, so theoretically they may try to overturn the vote they believe to be fraudulent and elect pro-Trump representatives to the Electoral College," he suggests.
Nevertheless, the journalist doubts that "enough Republican lawmakers will be willing to override the popular vote, unless it is proven to be fraudulent", because the situation may potentially spark a political chaos and a constitutional crisis.
'A Slow Motion Coup D'Etat'
"I've been saying for weeks that if Trump was going to win, he would have to win big or else the result would be stolen from him", notes Jim Jatras, retired US Diplomat and former GOP Senate foreign policy adviser.
This follows the pattern of what Americans saw in 2018 in several California districts that were called for the Republicans on election night, according to the former diplomat: "Over the days and weeks that followed [the results] were shifted over to the Democrats as they 'found' new votes and mail-in ballots."
Politico shed light on the issue, citing then House Speaker Paul Ryan who complained that the state's voting system is "bizarre": "We were only down 26 seats the night of the election and three weeks later, we lost basically every California race". However, California Secretary of State Alex Padilla rejected Ryan's concerns.
The counting of votes in the 2020 election does seem suspicious, according to Max Parry. Although it makes sense that the majority of absentee ballots would be overwhelmingly blue since Trump urged his followers to vote in person, "this does not account for the widespread irregularities or the excessive duration of time it has taken where several days after Election Day, several states have still yet to be called."
The journalist believes that "a disputed result is being manufactured in order to trigger a crisis where Trump can be removed from office," calling the unfolding situation "a slow motion coup d'etat" which was "engineered" in advance.
"Let's be honest", says Jatras. "Heavily corrupt cities, too, simply find as many ballots as they would need to flip over some of the marginal states like Wisconsin and Michigan, which looked like they have already occurred, and possibly now Pennsylvania. So I think we are seeing really what amounts to the daylight robbery of an election that Donald Trump, in fact, really won, but will be shifted over to Biden. And unless some really, really sharp lawyers can find some way to counter this, I think it's likely to be successful."
Alleged Mail-in Fraud & Non-Citizens' Voting
Trump was not incorrect when he claimed that mail-in voting is vulnerable to fraud, according to Max Parry.
"In fact, according to some academic studies more than 20% of all mail-in ballots are discounted for one reason or another," he says. "In the 2016 election, thousands of mail-in ballots were discounted because of postage due, while over 3 million were rejected in total."
While the Democratic Party and the mainstream media deny the assumption that mail-in voting is vulnerable to fraud, a US conservative think tank, the Heritage Foundation, issued a legal memo in July 2020 warning that "absentee or mail-in voting leaves America’s electoral system vulnerable to fraud, forgery, coercion, and voter intimidation". On the other hand, the think tank pointed out that "uncovering instances of voter fraud is difficult" allowing those committing fraud to "get away without repercussions".
In addition to this, conservative watchdog Judicial Watch earlier raised the red flag over the potential illegal voting by non-citizens in the 2016 election. According to JW, a total of 43 million non-citizens are currently living within US borders; of these, approximately 12 million are illegal aliens.
JW is not the first who has drawn attention to the issue. In 2014 an opinion piece by Jesse Richman and David Earnest, fellows of Old Dominion University, was published in The Washington Post's blog "Monkey Cage" suggesting that 6.4% of non-citizens voted in 2008 and 2.2% of non-citizens voted in 2010. Their study, which has been heavily criticised since then, alleged that non-citizen migrants' participation could affect "the outcome of close races".
"As for illegal voting by non-citizens, there is a lack of convincing evidence to support the idea that it is widespread and the sources I trust say it is rare," Parry says.
However, despite mounting criticism, Jesse Richman told Wired in January 2017 that he still stood by his findings, warning, however, against exaggerating the matter. One of Richman's detractors, Rick Hasen, author of the Election Law Blog, also admitted that "noncitizen voting is a real, if relatively small, problem", according to the magazine.
US Supreme Court May Settle the Dispute
Touching upon the unfolding legal battles unleashed by the Trump campaign in a number of battleground states, Max Parry notes that, obviously, the Bush v. Gore (2000) case gives Donald Trump the precedent to go to court to dispute the count.
It is quite plausible that the Trump campaign could move to settle the election in the US Supreme Court, but the key will be "providing sufficient burden of proof in wrongdoing", according to him.
"A recount may be the Trump campaign's best option, given the reports of irregularities in several states, some of which have automatic recounts if the margin between candidates is estimated thin enough in the final result or permit requests by candidates to do so if the result is within a margin small enough," the journalist notes. "They will have to wait until the result is finalised and force a recount before state deadlines."
Parry recollects that in 2000, the recount did expose several irregularities in Florida. However, in the Bush v Gore case it was the Supreme Court which intervened and rejected the recount", the journalist notes, adding that it would be only the second time in US history for the court to decide the winner.
Meanwhile, the distrust prompted by delayed vote counting in American swing states is on the rise. On 5 November, Breitbart noted that three Democrat officials overseeing Pennsylvania elections – Gov. Tom Wolf (D), Secretary of State Kathy Boockvar (D), and Attorney General Josh Shapiro (D) – earlier "expressed disdain" for President Trump on Twitter. The conservative media outlet suggests that this could have weighed on the election process in the state.
Here's the full text of that Commonwealth Court order I was talking about a couple of minutes ago: pic.twitter.com/IHUJTTWjKh— ByJohnLMicek (@ByJohnLMicek) November 5, 2020
At the same time, Pennsylvania Commonwealth Court ruled in favour of the Trump campaign on Thursday, allowing election observers to watch the mail-in ballot count in Philadelphia.