Media must do a better job with election reporting
The 2020 election was like no other in modern American history. The massive mail out of ballots, early voting, and the warnings the election might continue for up to weeks after Election Day. Then came election night and the decision to halt vote counting and other such irregular occurrences. Then 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 a many with claims of election irregularities. Elections challenges have been filed in Court with various justifications, and just prior to the election call on November 7, the US Supreme Court ordered that Pennsylvania segregate mail ballots, which were postmarked after Election Day, and set a hearing for the challenge. For many Americans not familiar with the nuances of elections law, this whole process has brought a great deal of confusion. Constitutional fine points have become far more important than in previous elections, and the American media must do a better job with reporting the process. Many have criticized the media’s reporting of polls that were wildly off election results and in favor of the Democratic candidate, but I’m going to stick with media issues with the dynamics of the election.
First, it’s important to understand the Electoral College method of choosing our President. The Founders wanted to buffer between the potential demagoguery inherent in a general election of one man one vote, and the benefits of an Electoral College for choosing the nation’s chief executive. They wanted distinguished representatives from throughout America, and did not want solely largely populated urban centers to determine the President. “Electors” were to be chosen by their respective states. Those Electors would be expected to act as a better judge the qualities of candidates for National Office than with individual voters. In Federalist 68, Alexander Hamilton provided a perfect synopsis of 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: “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 (which I will explain), is that the Legislature is given the sole authority over the manner of election in each respective state. Article II also provides: “Congress may determine the Time and choosing of the Electors”, and this also becomes relevant to challenges in the 2020 election.
For the 2000 election in Pennsylvania, the Republican Legislature decreed that mail ballots must be post-marked before 8pm on Election Day to be counted. The Democratic Governor, knowing more Democrats would likely vote by mail, lobbied the Legislature to grant more time, but failed. The Governor then went to the PA Supreme Court (with a Democrat majority of appointments) and was granted an order for ballots received after 8pm on Election Day to be counted. Republicans objected, and petitioned the US 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 for both parties to argue the case. In addition to the violation of the Constitutional prerogative of the state legislature, Congress had provided for the first Tuesday in November as election day in exercising their right of choosing the time for elections. The Supreme Court will likely order that postmarked ballots are not legal, and these ballots have helped put Joe Biden in the lead. This potential Supreme Court order can also have effects on other postmarked ballots in other battleground states. For example, in North Carolina the Legislature provided that each mail ballot must be witnessed. However, the North Carolina State Board of Elections changed the requirement in allowing for affidavits after non-witnessed ballots were cast. From the AP: “Republican legislative leaders and President Donald Trump’s campaign that 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”.
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Beyond the challenges over the usurping of legislative and Congressional authority to decide the manner and time of elections, most have heard other allegations of widespread elections irregularities and fraud, particularly from the President and his legal team. 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. For example, 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 was a solidly “red” county, and the glitch harms Republicans. Other such glitches have been reported, and in duplicating the rejected ballots to be counted, the numbers for candidates are being flipped.
These various issues are why the President claims he is not conceding the election, even after many media sources have “called” the election for Joe Biden. In comparison, during the last contested election with Al Gore trailing in 2000, and the media waited 37 days for him to exhaust his legal remedies for him to concede before declaring Bush the President elect. Confusion comes because the media “call” is based on projections, and not determination of electors or the dynamics of the electors the electing the next President. Previously, and without the mass mail balloting and the usual requirements for mail ballots (being requested and with the normal formalities), elections are “de facto” determined based overwhelmingly on ballots cast on election day. In all other modern elections except 2000, the electoral college numbers were clear enough, and without razor thin margins on election night, that the trailing candidate conceded the race. Mass mail balloting destroyed that dynamic, as the apparent winner on election night was Donald Trump before counting stopped.
The Constitution provides that the end of the term for outgoing Congressmen and start of new term is on January 3, and the end of term for the outgoing President is on January 20. The New Congress receives the electoral votes from the states after starting the new term, and “The President of the Senate (Vice President) shall, in the presence of the Senate and House of Representatives, open all the Certificates, and the votes shall then be counted.” Only then is the new President elected, and that person becomes the legal “President Elect”.
On election night, when voting was halted with a seeming Trump win, the media told America to be patient and for every vote to be counted. Reporters warned that it could take weeks before counting was complete and any court challenges decided. When the vote counting appeared to flip to an apparent Biden win later the next day, media began the pressure of the race being called. Three days after the election, and only hours after the Supreme Court found the Constitutional issue with the postmarked ballots, the AP and then the other mainstream networks called Pennsylvania for Biden and therefore declared him President Elect. Quite a different standard from what was used in 2000, and against the “patience” rhetoric of Tuesday night. They should have remained consistent with the talking point of patience to prevent the current angst with a media called “President elect”, and vote counting and court battles still sorting out the race.
Three observations as we move to the future and all involve the media. 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 this as “attacking Democracy”, and helped stop it. Two, the media must get back to precise reporting and journalistic objectivity to prevent massive confusion. “Forecasting” a winner of a state should not equate to a candidate “winning” a state. Forecasting a President elect does not make one a President elect, particularly with razor thin margins and court battles. Technically, when Congress meets in January and counts the votes the Presidential election is determined. Obviously, if a candidate concedes or legal options are expired the winner is clear, but words have meaning and the media does not chose the President alone. Three, Americans must become much better educated about the process, and the nuances and purposes of Constitutional systems like the Electoral College. The media is supposed to help, but yet furthers misunderstand with imprecision of language about when someone becomes President elect, and who controls elections by the Constitution. Our Nation and Constitutional system have stood for over 230 years, but it’s time to get back to the basics in understanding this sacred system for it to continue the next 200 years.
God Bless America!
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.
