On the eve of the election

Talk is bubbling up about potential legal challenges over results.

This sort of thing came to mind when I heard Donald Trump’s response to Fox News moderator Chris Wallace in the final debate with Hillary Clinton, when asked if he would accept the outcome of the election. Given what happened in both of George W. Bush’s elections (recalled in the article), and the many and assorted charges of ballot mishandling and reports of glitches in all the elections of modern times, this one in particular seems destined for extra scrutiny.

Yet Trump’s response about a ‘wait and see’ attitude became the one headline of a 90 minute debate about so much else. Media made it scandalous (in quite a season of scandal). The New York Times called it “a remarkable statement that seemed to cast doubt on American democracy”. The Washington Post noted that Clinton called his response “horrifying” and added that he was “talking down our democracy”.

Now NRO has this simply factual piece suggesting that a close finish would likely trigger legal challenges, of the sort we’ve seen before.

We almost went into a Bush v. Gore–like election overtime in 2004 because of provisional ballots. Voters in every state must be given a provisional, or conditional, ballot if for any reason they are unable to cast a regular ballot (if, for instance their name is not on the voter rolls or they lack voter ID, or if an election official brings a challenge). The provisional ballot is then cross-checked with public records to see if it’s valid.

How times have changed even on these basic requirements. My sister in Ohio cast an early-voting ballot and was not asked for any identification. Which should astound those of us who have, rightly, gone to the polls and after being found on the roster of registered voters, been asked for some ID to prove who we are as the correct voter assigned that ballot.

However, John Fund states in the NRO piece,

This year, the election could be close enough in one or more states to bring one or both sides into court. “The risk of that happening is higher than it used to be — and higher than most of us realize,” Edward B. Foley, the director of an election law center at Ohio State, and Charles Stewart III wrote in the Washington Post today. They note that votes counted after Election Day can easily determine the outcome of a close election.

So why the shock and horror over Trump’s ‘wait and see’ response about the election outcome?

Especially since…

In addition to the issue of provisional ballots, our local election systems use a patchwork of inconsistent rules, operate often antiquated machines, and can turn a blind eye to voter fraud. There are also jurisdictions that harbor incompetent bureaucrats. During the infamous recounts of the 2004 governor’s race in Washington State, Seattle’s King County mysteriously managed to “find” uncounted ballots on 18 separate occasions. America’s voting system is “a bit like trying to measure bacteria with a yardstick,” and we often can’t figure out who really won ultra-close races, mathematician John Allen Paulos mournfully noted after assessing the 2000 presidential results in Florida.

So, Fund concludes,

It’s said that the fervent wish of every election official is “Lord, please don’t make the election super close.” But if several of Tuesday’s races are tight, we could enter a quagmire of recounts, lawsuits, and protests outside government offices. If you thought the election campaign was ugly, just wait in case there is a post-election legal contest.

All of which is why I don’t put stock (especially this year) in political pundits, pollsters and political analysts. They really don’t know what will happen on Tuesday, but have to fill time with commentary. It could be a landslide one way or the other. It could be very close and then followed by the drama of the above scenarios of legal challenges.

We have to stay calm and clear minded about this election. After the June Brexit referendum, my friend and radio show guest Austen Ivereigh shared how contentious and divisive that campaign had been, hot it even pitted neighbor against neighbor, husband against wife, families unable to talk with each other anymore.

And meanwhile, none of the polls and predictions really got it right.

Something similar has happened here in the U.S. during this long, trying election season. It will play out as it will, come Tuesday night, Wednesday morning, or whenever it comes to a conclusion. But in the remaining hours, we have the time to be level headed about what’s at stake, and what we’re about to do to determine America’s future, and how we define ourselves.