Opinions & Observations: Our conventional values prevail in unconventional ways in surreal times

November 23, 2020 Editorial Staff
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Leading national barrister Allard views election aftermath


(Columnist’s Note: We’re pleased once again to present the insightful and authoritative views of guest columnist former Brooklyn Law School Dean and President Nick Allard as this column’s first post-election endeavor. Allard is one of our nation’s most prominent barristers and was greeted accordingly when he joined the globally renowned firm Dentons a few years back. The firm’s managing partner, Mike McNamara, said then, “Nick’s global perspective on the changing nexus of law and public policy will be a tremendous asset to our clients and we are delighted to welcome him to our team.”)

“Joseph Robinette Biden and Kamala Devi Harris prevailed in a late round of a heavyweight slugfest. Votes from Rocky Balboa’s Philadelphia finally prompted the networks, if not officials, to ring the bell and call the bout. The official outcome, however, is now inevitable.  Whether or not incumbent Donald John Trump throws in the towel, he lost by decision by the judges — the American voters. 

“Biden, the most conventional of all possible candidates, demonstrated the personal fortitude to name a former tough adversary as the most unconventional running mate. Harris is a relatively young Black woman, a path-clearing senator, a former prosecutor of Caribbean and South-Asian heritage, who is married to a white Jewish lawyer and a mother in a blended family.   

“The Democratic ticket was headed by a white senior citizen — an old-school politician who was rescued from election oblivion after stunning primary losses in New Hampshire and Iowa by the inspirational call of Black U.S. Rep. Jim Clyburn and spiritual leaders in South Carolina, of all states. 

“Remarkably, Biden, whose career reminds us of the miracle of Lazarus, began his 2020 turnaround because of Black votes in the very place that abolitionist newspaper editor Walt Whitman’s Brooklyn Eagle had reported that the Civil War began. Then, in the main event, Biden and Harris were put over the top by the large turnout and ballots of Blacks, women and young voters who rewrote the election map of America. After 47 old school years in office and on his third try, the winner, Biden, carved a most unusual route to victory against uncharted obstacles.

“Biden and Harris will likely secure 306 [edit: they did] electoral votes and record the most votes received in history for a Presidential candidate. When all votes are counted and the dust finally settles, Biden and Harris will win the national popular vote by a lot — say by 6 or 7 or more million votes. 

Defeating an incumbent is not routine in U.S. history 

“No one got the election they wanted. But we all got the one we needed with a huge turnout on both sides. The creaky election machinery held. There was no repudiation, no vindication for anyone from any of the deeply felt different perspectives following the election, neither for the left nor the right. In time, hopefully most of us will come to understand that we got what we needed; that is,  resolution and recommitment to constitutional democracy. 

“There were enough surprises on both sides — the extraordinarily diverse Latinx people in America who went for Trump more than predicted and smaller-than-expected House and Senate gains for Democrats on one side (Georgia, Arizona and North Carolina close and probably actually going for Biden on the other side) — not to mention Biden underperforming some places and Trump overperforming in others, all developments that tend to help authenticate the outcome, which is the result of democracy — by definition and experience a messy system. 

“Obviously, the huge record-breaking turnout is despite the pandemic-driven risks and purposefully fanned fears about the safety of voting in person. There were intimidation attempts, doubts cast on the integrity of mail-in ballots and other unintended and intentional factors suppressing votes, including the dismantling of postal service delivery operations before the election and then trying to block counting votes postmarked before or on election day but delivered later. Otherwise, the total vote might have been even bigger.

“Indeed, history will probably show that the president actually suppressed his own vote at a time while the fears he was responsible for feeding due to the pandemic and threats about watchers and dog whistles to goons to frighten voters at polling places actually increased the mail turnout for Biden. Trump should have told his supporters to vote by mail. What could become known as ‘Trump’s Folly’ is likely to be regarded as a titanic tactical campaign blunder of historic proportions. 

“Under the circumstances, after so many problems collecting and counting votes in recent primaries, and now with so much at stake, the most important story of this election is how well the ongoing methodical, determined state and local vote count is going. What a tonic it is to see so many people from all points of our national compass and across the political spectrum doing their jobs and civic duty to get us an honest accurate vote count.  

Could Thomas resign and give Trump another ‘quack?’

“What we face ahead will be tough and divided government at the federal level. Notably, the constitutional role of states in our federal system provides a further check protecting divergent interests and steering and shaping majoritarian policy. This reality will increase the degree of difficulty to get needed work done and to build consensus on what priorities government can take on. Do not expect completing ‘the wall’ to be one of those priorities.

“Any splits between the administration, House, Senate, the court and the myriad states will act as a sort of self-limiting throttle-valve moderator to keep the engine of government from racing too fast in any one contentious direction and help keep our sharply emotionally divided country from overheating. Notwithstanding the urgency of our problems, our understandable frustrations and impatience, this is not a bad thing.  

“In our brilliantly engineered cantilevered self-correcting system of limited self-government, in our constitutional democracy subject to the rule of law, every action has a possible reaction. For example, to take one wild hypothetical simply for illustrative purposes, suppose during the lame duck session Justice Clarence Thomas resigned. And suppose Senators Mitch McConnell and Lindsey Graham in a still-Republican majority Senate were tempted to grant the lame duck president one final quack and try to confirm his Supreme Court nominee. 

“This would both exponentially put their thin Republican Senate majority at more risk in the two Georgia Senate run-off elections scheduled for January. That is, just for starters, why this excruciating hypothetical might be imagined, but is a nightmare that will not survive the light of day. 

“In a more probable scenario, given the growing breadth of the election outcome and the utter absence so far of any challengeable anomalies, the prospect of legal challenges to overturn the outcome is unlikely. On top of the lack of legal merit of baseless claims of fraud or vote tampering, the Supreme Court’s norm on political questions and its sensibility on such matters is to put institutional preservation above ideology, dating all the way back to 1803 when the court handled a not dissimilar situation in Marbury v. Madison. 

“This certainly has been the approach of Chief Justice John Roberts, though now there is a conservative majority without him if brand new Justice Amy Coney Barrett does not recuse herself, as she should, on 2020 election challenge cases. Boiling it all down, it seems unlikely to this writer that the court will  rule to unravel state outcomes in the 2020 presidential election, especially when any case before them is unlikely to change the result. 

How to gain acceptance for the Biden victory

“No, the biggest challenge will be how to gain acceptance of the Biden victory and to move on. How to defuse the upset felt by so many and defang any irresponsible dangerous incitement to self-help, disregard for law and even violence.  

“So, when the 2020 election is officially resolved, we need to focus on solving problems. We should turn the other cheek, put to one side retribution and score settling, try to find ground on which we can come together, strengthen, restore and move on. Which of the candidates is better for this challenge? Looks like we now have the right president at this moment.

“With the election over, it is imperative that all of a sudden we do not lose interest in fixing our outdated, terribly clunky election machinery. It held together like one of those submarines in old movies forced to go to depths it never was built to survive. Our election infrastructure held together without any major known rupture only because of the dedicated work of tens of thousands workers and state officials all across the country, and because of the quiet, determined exercise of the right to vote by record-breaking numbers of tens of millions of voters for both candidates. Despite unprecedented obstacles and safety issues, people cast their ballots and made sure they counted. 

Need fairer procedures for assigning electors

“So, we must not forget to:

“1. Focus on addressing the undemocratic electoral college apparatus. This can be done without constitutional amendment by more states (who are empowered to do so by the Constitution in Article II) deciding how to apportion electors and abandoning the winner-takes-all approach, which is the root of the problem. Individual states can and should adopt any number of variations as, for example, Maine and Nebraska have, for having electors chosen and assigned in their state more democratically than just giving all of the electors to the winner, even if the winning margin is by one single vote. The prevalent winner-takes-all system both undermines and threatens to disenfranchise even a large national popular vote majority and the significant minorities in most states including rural and less populous states. 

“2. Have an immediate autopsy on our election infrastructure. Any federal infrastructure initiative should include a postmortem studying our election apparatus. We need to understand how to make it better, faster, more accurate and secure and more accessible and how to provide states with resources, training and support. 

“Personally, I believe that it is essential to evaluate how in this 21st century we can supplement our pony express-era snail mail and in-person voting techniques with secure electronic digital voting. After all, we all file our taxes and bank that way. Let’s figure it out. Jeez, for years astronauts from all countries have voted from the international space station. Other countries rely on electronic voting with excellent results. I wrote about the need to explore e-voting here:

“Meanwhile, our local terrestrial election workers are underwater and under fearsome pressure. Voters must often take risks and enormous time to vote and even then not be sure their ballots will count. When we all finally surface from this election and can breathe we must not forget how dangerous it was for our democracy.  Surely, we can and must do even better. 

“Once again our 244-year-old democracy has survived a major stress test. If we have learned anything, it is that it is not time to take this blessing for granted. Our constitutional democracy takes work and it can be improved and strengthened to preserve and enhance equality, justice and peace. So, while it is fitting to be relieved and grateful, as my father-in-law would say, ‘Give thanks, pray to the Lord, but row away from the rocks.’”

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PRO BONO BARRISTER is a weekly column dedicated to telling about the good that lawyers do. Send your comments or suggestions to this writer care of this newspaper or to [email protected].

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