Thursday, November 5, 2020

Part I

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The Time For Campaigning Is Over And Now We Wait: Thoughts on the Presidential Election as Every Vote Is Counted

Well, we are now two days from Election Day in the United States, and the stunning development today is that we actually don’t know a great deal more than we knew 24 hours ago. And yes, that is surprising. It’s also not a compliment to our entire political system and our electoral process. But nonetheless, it is important at this stage that the vote to be counted with integrity, all votes, every vote, the vote everywhere in order that Americans can be assured of the credibility of this election. And then we’ll have to deal with how Americans decided.

But we already know some things. We know that as the day ended yesterday, Joe Biden, the Democratic nominee was moving closer and closer to an anticipated 270 Electoral College votes, which would mean that he would win the White House. But that is not a sure thing yet, and that has to do with the uncertainty about the remaining votes, the ballots yet to be counted.

The reality is that in many of the most crucial swing states, some of them absolutely essential to President Trump’s reelection, some of them not essential, but nonetheless very much still a part of the picture, the issue is that we still don’t know exactly. We don’t know with confidence how those elections are going to turn out. But at this point, it’s almost as if we are trying to reassure ourselves that we do know and we don’t know simultaneously because we do have the majority of votes in every single one of these swing states still remaining.

We have at least some general confidence of how the vote is likely to turn out. It’s not an absolute confidence and there are no official results in this sense. But nonetheless, if you are looking at the count, an account of the Electoral College, looking at the two columns, a Biden column and a Trump column, the reality is that the Biden column right now has a lot more almost assuredly confirmed states and Electoral College votes. But still, neither candidate is up to 270. Joe Biden is closer than Donald Trump to 270. Donald Trump’s path to 270 is considerably more difficult at this point than was Joe Biden’s. But nonetheless, there is no finality. And as frustrating as that is, it’s very important for us to recognize it.

But we have to have something of a two-track mind here, because even as there is no finality, the reality is that the entire electoral system on which our Constitutional Republic stands requires that Americans understand how an election works. Have confidence that the election was actually conducted rightly, or at least that there were no errors that would compromise the integrity of the election itself. And that the American people and the American government, this massive constitutional and governmental system, the American people and the larger culture have a pretty good idea of the direction the nation is going to be taking.

Now, this leads to another issue that Christians need to consider very carefully. The calendar really matters. What do I mean by that? I mean that up until Election Day, campaigning is fair. That’s what candidates do. That’s how politicians get reelected. That’s how parties conduct their business. It is not only expected. It’s not only fair. It is the very business of candidates to conduct a campaign right up until the voters are going to the voting booth on Election Day. And of course, that situation is a little more complicated by the fact that over 19 million Americans actually voted in some form of early voting.

But nonetheless, it is absolutely fair for the presidential candidate of either major party to prosecute the case, so to speak, all the way right up until Election Day. But that’s when a very important shift has to take place. It’s not to say that there are no lingering questions about the election, just remember the year 2000 and that election. But it is to say that when you are looking at the date of the election after that, it requires something far more than being a candidate.

I was very clear that given my worldview convictions, the ticket of Donald Trump and Mike Pence made far more sense than the ticket of Joe Biden and Kamala Harris, and that’s putting the issue mildly in my view. But nonetheless, now that we are on the other side of Election Day, it is vitally important that we understand that we are in a different period of time. Candidating or campaigning at this point is actually not the right mode of operation. And I say that because President Trump has made statements over the course of the last two days that actually makes sense in the context of campaigning, but not in the context of seeking to understand exactly what has happened, how Americans has spoken in a general election.

Both sides in this election went into the 2020 election knowing that either side might win. There was a path to 270 Electoral College votes for both of these candidates. Early on election night, it appeared that Donald Trump was confounding his critics and deniers by pulling out a vote on Election Day that appeared unprecedented and still will go down in history as an unprecedented Election Day, get out the vote effort. And by the way, it is going to have consequences. It already has had consequences because that very effort goes a very long way in explaining how the Democratic hopes of gaining the majority in the United States Senate seem to have failed.

Furthermore, defying the pollsters even where he was considered to be behind Joe Biden in some cases, most crucially the state of Florida, it turned out that Donald Trump not only won, he won handily. But we are looking at the Electoral College count and we are looking at the fact that by any honest estimation. And let’s just be really clear this is accepted by the leadership even right now of both major political parties. There is a very clear and candid awareness that the path to 270 right now favors Joe Biden far more than Donald Trump. It has to do simply with the matter of the map and with the matter of math.

President Trump has pointed to what he considers to be election irregularities, and no doubt there have been many election irregularities, but this gets to an issue we have to understand. There are two issues that we need to confront very clearly. One of them, of course, is whether election fraud or election misrepresentation or a miscount took place. No American should be willing to allow for that to happen. And thus, if there is any credible evidence that there was some effort to commit voter fraud on any widespread effort, then that needs to be identified and investigated, and if it does change the results of the election materially, American should deal with that.

Two things here, Americans, all Americans should be agreed that every single vote of every single citizen should be counted. Furthermore, we must believe that an election isn’t over until every single vote of every single citizen, rightly and lawfully cast is counted. And that means also that every single American citizen should be unsatisfied if there is any question about the actual veracity of the voting process.

Complications, yes. Frustrations, yes, especially in the context of COVID-19. All kinds of questions that will certainly have to be settled before America’s next general election. But once again, the first question is whether or not significant voter fraud or misrepresentation or a miscount actually happened. But the second question comes down to asking whether or not any credibly questioned or challenged votes would have a material impact upon the final vote count.

So, let’s just consider hypothetical math. Let’s say a million people voted, and if a million people voted and there are two candidates and only two candidates, then someone who gets 500,001 in just a popular election would win the election. And thus, if you’re looking at gaining something like let’s say 550,000 over against 450,000 and it turns out that 10,000 votes are in question by possible fraud, manipulation or miscount. The fact is that that should be investigated, but even if every one of those questionable ballot should turn out to be invalid, it wouldn’t change the actual result of the election.

So some but not necessarily all of that is likely to be clarified over the next day or so. We certainly hope when we find out how the votes are being reported, especially in several of these swing states and whether or not the pattern continues and whether or not there is any serious credible concern about the vote. At this point, there is no serious credible concern that is a matter of public record.

But this gets to a bigger issue of our Christian concern. We recognize that in a fallen world, a form of self-government, constitutional self-government is itself rather fragile. Indeed over history, it has revealed to be extremely fragile. So fragile that the American experiment in ordered liberty is still just about singular in its success, four years by four years in electoral cycles.

The stability of our constitutional order is indeed the marvel of the world and it is a stewardship for Americans and every generation. It’s a stewardship for us now. But we have to understand that the most crucial test of a Democratic form of self-government when it comes to the electoral process is what happens when there is a change of party identification at the top of the ticket.

That is the huge question, and of course it ricochets throughout the entire political order. Considering where we are right now, it would have to do with whether or not there would be a respect for a change in the partisan leadership of the House or of the Senate, or for that matter, a continuation of the pattern. It has to do, more than anything else, when the party that has held the White House loses and thus must vacate the White House and acknowledge the presidency of the opposing party.

Now, remember that came early in American history. If it had come any earlier, it might’ve gone very badly, but it was extremely tense in the year 1800, continuing into 1801. What happened in 1800? Well remember, you’re looking at 1788 when George Washington was elected the first president of the United States, reelected to a second term in 1792. He set the standard for American presidents, now a matter of constitutional requirement, that he served only two four-year terms in the White House.

Washington was then followed in office by his former vice president, John Adams, but Washington and Adams were of the same party. We would now refer to them as Federalists. That would be the more conservative by far of the two major political parties that had emerged by the end of President Washington’s term. But the opposing party won the White House in a hotly contested election of 1804. It had been bitterly contested in 1800, but that bitterness continued into 1804.

The bottom line of the entire situation in the year 1801, the election was in 1800, but the inauguration of the new president would take place in 1801. The bottom line issue was whether or not the Federalists would give way, having been defeated in the election, and that means for the president, in the Electoral College, defeated by Thomas Jefferson, who was their bitter political foe.

Now the party that we would now associate with Thomas Jefferson would be the Democratic Party. The names have changed over time, but you’re looking at what is really the origin of the Democratic Party as we know it today in the person of Thomas Jefferson. The Federalists believed that the Jeffersonians would be the ruin of the Republic. They honestly believed and argued with fury that if Thomas Jefferson and his party were to gain control of the White House, national disaster would ensue. They had two rival visions of what America represented and how our constitutional order was to be led and structured and directed.

You probably wouldn’t know this from the spectacularly popular musical that bears his name, but Alexander Hamilton we now know actually sought to find whether or not there might be a means short of violence to prevent Thomas Jefferson, who had been elected president of the United States, from taking office. But Thomas Jefferson did take office in 1801 and the Republic continued.

Now the political debates continued. That’s what makes American politics lively and authentic. It’s what makes our experiment in ordered liberty credible. There are continuing arguments, but the argument is over when the votes are counted, at least the argument about the election. That moves on, as I said yesterday on The Briefing, to the arguments that will follow the election. But if Americans continue to argue the elections indefinitely, there is no future for this Republic.

So claims of voter fraud without specifics are dangerous to the entire American experiment, but it is also dangerous to act as if electoral misbehavior or voting fraud is not possible because American history has demonstrated that it is possible and it has happened. There is basically no historical question that Lyndon Johnson basically stole his Senate election, and it came down to the fact that his forces in one county actually had to ask out loud, “How many votes do you need?” After the election was supposedly over.

The same thing was true of the presidential election with far higher stakes in the year 1960. That election finally came down to the state of Illinois. It was one of the closest elections in American history, and it is virtually incontrovertible that there was a significant degree of voter fraud on behalf of John F. Kennedy in the area of Cook County, Illinois, in the 1960 election.

So it can happen and it has happened, but making generalized charges of voter fraud without specifics that can be investigated, that’s quite dangerous to America as a nation.

Part II

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Republicans Seem Likely to Hold the Senate Majority—What Will That Mean?

But even as the results of the presidential election are still uncertified, unclear, yet to be determined and announced, the fact is that we already know another big story. And that is that the Democratic Party has failed to regain majority control of the United States Senate.

Now, you’re looking at the fact that some of those results are also not yet final. But at this point, even in what is now declared or called in terms of the contemporary language, the reality is that as of this morning, the Democratic Party has picked up a net one seat in the United States Senate. Now that’s net. It could change over time, especially with the necessity now of at least one runoff election for the United States Senate for one of the two Senate seats up for vote in the state of Georgia.

But as we went into the election, even as we were considering these things on Monday, it appeared that the Democrats had the upper hand. They claimed that they had the upper hand. They bragged that they had the upper hand. It was as if the pollsters were working in connection with them and announcing that there was virtually no hope that incumbent Republican Senator Susan Collins of Maine would be reelected, but she was and she was clearly, and her opponent has already conceded the race.

Once again, the pollsters are humiliated with the actual election results, and we already know that that’s true in the national election, in the senatorial elections, and also in many of the congressional elections, four seats in the House of Representatives. By the way, the Republicans appear to have actually picked up seats and the House. But in the Senate, we were actually told, although here in Kentucky it made no sense, that Senate majority leader, Kentucky Senator Mitch McConnell, was in electoral danger running for another secure term.

It turned out that he won by what can only be described as a massive landslide. Not only was the race not close, it wasn’t even close to being close and actually never was. In the state of South Carolina, we had been told that Senator Lindsey Graham was in grave danger. And by the way, he was vastly outspent by his Democratic challenger. But by even on Tuesday night, it was clear that Senator Graham would be quite easily handily returned to his seat in the United States Senate.

Another senator the pollsters declared was not only endangered, but basically dead on arrival on Election Day, Thom Tillis of North Carolina is, though the election is not fully counted, he is considerably ahead. It at least appears at this point that he also will be reelected. And then you have to say, “Well then how did the Democrats pick up a seat?” It is because Senator Cory Gardner, Republican of Colorado, lost to former Governor John Hickenlooper. So the Democrats picked up a seat. And it is likely at this point that Martha McSally, who is a Republican Senator from Arizona, has lost her effort to be elected to a six year term, losing to Democratic candidate, Mark Kelly. That’s not official yet, but it is basically now conceited by both parties.

So that would be two Democratic pickups, except the Democrats have lost at least one senatorial seat, and again, this one was actually quite anticipated. Tommy Tuberville, Republican challenger to Doug Jones, the Democratic incumbent to there in Alabama, he defeated Jones. And once again, it wasn’t even close, but at least in this case, no one expected it to be close. So that means that two Republican seats have thus far switched to Democratic, but one Democratic seat had switched to Republican, and since the Republicans began with an advantage 53 to 47, it is now changed to 52 to 48, but 52 was still very much a majority.

Now, Democratic frustration with this is now baked into the cake, so to speak. And so you see headlines such as some that have appeared in the New York Times and especially the Washington Post that have announced that if Biden is elected, if Joe Biden does become the 46th President of the United States, he is likely to find that he will face insurmountable headwinds in many of his agendas when it comes to the Republican majority in the Senate.

That’s absolutely crucial because it means that many of us who are concerned with many of the intended plans of the Biden administration now understand that even as he will have the House of Representatives under Democratic leadership at his back, he’s going to have facing him from the front the Republican led majority in the United States Senate.

Now we also have to recognize that this means that virtually everything is now going to be contested if Biden is elected president and the Republicans continue to hold onto the Senate. Every nomination, every confirmation, every federal judgeship, every Supreme Court seat, every single item of major controversial legislation is going to be a head-on collision between a Democratic president and a Republican majority in the United States Senate. But it’s too early to say that we know that’s what the picture is going to be.

But right now, the Republican majority continuing in the Senate is a far more assured fact than the election of Joe Biden as President of the United States. But Joe Biden right now has the advantaged position clearly in the Electoral College clock, and that means that members of both parties, leaders of both parties are already trying to figure out what exactly a Biden administration with a Republican Senate would look like.

Part III

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Supreme Court Hears Oral Arguments in Religious Liberty Case: Why Is This Case So Important for the Future of Religious Freedom?

But finally one of the big issues we talked about before the election and we’ll be talking about seemingly forever is the importance of the United States Supreme Court. President Trump nominated and saw confirmed in a Republican-led Senate three Justices of the United States Supreme Court. Think about that as an enduring legacy. That is one third of the entire Supreme Court of the United States.

Regardless of what happens in the presidential election over the next several days or even weeks, the reality is that one very lasting achievement of the Donald Trump presidency is going to be three Supreme Court justices, and the most important of them was the last, now Justice Amy Coney Barrett. And Justice Barrett was seated on the court the very day after the presidential election. So the presidential election took place on Tuesday, yesterday as the court met in session, hearing oral arguments. In one of the most important constitutional cases on religious liberty to come in a very long time, Justice Barrett was amongst the justices hearing the case. She will be amongst the justices deciding the case, and this is a huge case.

We’re talking about the case that is known as Fulton vs. City of Philadelphia. We’ve talked about it. It has to do with the fact that the City of Philadelphia targeted a Catholic adoption and foster care agency there and eliminated their contract for ongoing foster and adoption care with the cooperation of the city, based upon the fact that this Catholic charity was operating by Catholic doctrine and would not place children for foster care or adoption into homes that were headed by same-sex couples.

A couple of huge things came out in the oral arguments yesterday. For one thing, a matter of fact, it turns out that even as the city terminated this agreement and did so violating the religious liberty of this Catholic ministry, the reality is it’s not even the case that a single same-sex couple asked to be a client to receive a child and was denied. It didn’t happen. Nonetheless, once again, we see a religious organization found guilty of being religious. In this case, a Catholic adoption and foster care ministry found guilty of being Catholic.

But the general impression not surprising here of the mainstream media is that the conservative majority on the Supreme Court is likely to find that the City of Philadelphia is in the wrong. That the city had violated the free exercise of religion rights of the Catholic charity. And it’s not just about this Catholic charity, it’s about every single religious ministry that would dare to operate on the basis of its own convictions.

The most important word spoken in the oral arguments were spoken by Supreme Court Associate Justice Samuel Alito when he said, quote, “If we are honest about what’s really going on here, it’s not about ensuring that same sex couples in Philadelphia have the opportunity to be foster parents.” He went on to say, “It’s the fact that the city can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old fashioned view about marriage.”

Now let’s be honest, that is a stunning statement to be made by a justice of the United States Supreme Court in the course of oral arguments. But we need to understand that not only is it the case that it’s not just Catholic ministries that are at stake here, but any Christian religious, any kind of ministry or organization that would operate on religious terms, according to religious conviction.

But secondly, we also have to recognize that it’s not just adoption and foster care that is at stake here, but a very broad array of missions and services and institutions and schools. You go down the list, but there’s something else here, and that is the fact that in this case there well might be a successful challenge to a 1990 decision of the United States Supreme Court known as the Smith decision that actually severely did conscribe the free exercise of religion.

So the Supreme Court of the United States is poised to make history, big history and history in the right direction, in this case, and in the preservation of religious liberty. And newly seated Justice Barrett is not only there for the history, she is there to be one of nine to make history. Another reminder that elections, let’s say it again, have consequences.