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The Supreme Court’s Pennsylvania Cleanup

by The Editorial Board

The Briefing

Monday, November 16, 2020

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This is a rush transcript. This copy may not be in its final form and may be updated.

It's Monday, November 16, 2020.

I'm Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

The Crisis of Legitimacy in American Politics — And With the World Watching Us

Well, here we are on the 16th of November of the year 2020, and we are still deeply in conversation about the national election, particularly the presidential election. It's not a pretty picture, and it's difficult for us to discuss it. It's difficult to think through all these issues, but our responsibility as Christians seeking to be intelligent and honest is to work through these issues.

One of the basic issues comes down to how we handle the results of the election. At this point, the results are becoming increasingly clear. You are looking at a remarkable election. You're looking at an election that did indeed reveal a deep and abiding partisan ideological divide. You're also looking at an election that turned out millions more voters than have ever voted in such an election before.

As a matter of fact, Donald Trump got millions of additional votes in 2020 over what he got in 2016, winning the white house. Yet, inevitably it appears that he has lost the white house, and thus, increasingly it is becoming a matter of intellectual honesty to refer to Joe Biden, the democratic candidate, as the almost certain president elect. As I discussed a week ago today on The Briefing, that was the first briefing after the associated press had called the election for Joe Biden, the title president elect is actually official in retrospect. It goes back to the actual election. Once you have the electoral college vote and once you have the election certified, it goes all the way back to the election, because at that point, the president elect became the president elect. But you could look at various points at which one could credibly claim to be the president elect or to know who the president elect is.

In the final analysis, it really doesn't come until the results of the electoral college are confirmed by the house of representatives. The electorate college itself is going to meet on the 14th of December, and between now and then, the various states and their localities are going to be confirming the actual results of the election and certifying those elections. The very last date of the last state, according to its own principles, offering that certification will be December the 11th. But as I explained a week ago today, the associated press has been calling elections, and thus naming a president elect all the way back to the year 1848. To say the very least, that's a very long time, and not once have they had to reverse their declaration because they're not reporting on polling, even exit polling. They're actually reporting on the results that are coming in from polling places across the United States.

They have a very good idea of how those results are adding up, and furthermore, they don't call an election unless they are absolutely certain, and the tipping point of their certainty is the fact that the candidate who is behind has no possible means of regaining enough electoral college votes to gain a victory. That's a certain kind of institutional caution that we should respect. Of course, the longevity of going back to 1848 and never having to reverse, by the way, in the year 2000, let's remind ourselves, the associated press did not call the election until after the Supreme Court had acted. Thus, when you're looking at the year 2020, it has been clear for a matter of days, not only to the American population, but certainly to president Trump himself, that the election was won by Joe Biden.

Over the course of the last several days since the election, the president, his campaign, and his administration had been calling for every vote to be counted and for there to be no rush to a conclusion about the president elect, but we're in a different position now than we were even a week ago. The fact is that over the last several days, the picture in the electoral college has become more and more clear so that by most estimations, Joe Biden is now sitting at 306 votes in the electoral college.

That's a very decisive electoral college victory. It happens to be the exact number of the electors that went for Donald Trump in 2016. Donald Trump referred to that as a landslide in the electoral college. That was probably an exaggeration, but nonetheless, it's the exact same number that Joe Biden is likely to end up with right now.

There has been mixed messaging coming from within and without the Trump administration and the Trump campaign, with some people basically winking and increasing number of Republicans winking to say we know that the election is over, we know that Joe Biden has been elected, but we're trying to find a way to hold the base of the party together and not to have an electoral defeat become a depressing issue.

Furthermore, President Trump is having to deal with this himself. The other messaging has been far more belligerent, and some of this has come from the president himself. He's referred to the fact that he could lose the election only if the election were rigged. By the way, he had used similar language prior to the vote. In November of 2016, of course, that disappeared when he actually won the presidency and the electoral college vote. But he said it again before the election this time, and has said it again as recently as over the last couple of days.

Thus in that sense, President Trump is casting doubt upon the legitimacy of Joe Biden as the incoming president of the United States. Then there arises an uproar of people saying that once again, President Trump has violated democratic norms and is endangering our entire political system, not only in terms of etiquette, but in terms of legitimacy. That's a rational argument, but we also need to pause and consider at a deeper level how the very category of legitimacy has been undermined by both parties, or at least by partisans of both parties in recent election cycles.

In particular, it would good for the left in the United States to recognize and to admit before the American public, that it has never reconciled itself to the legitimacy of President Trump's election in 2016. Ever since November of 2016, many people on the left who are now being heralded as paragons of democratic virtue out loud denied the legitimacy of Donald Trump's election, even he won clearly in the electoral college.

Thus, as President Trump began his administration and as he began work as president elect, the mainstream media and the democratic party, at least several leaders in that party, began routinely to dismiss his entire presidency as illegitimate. It didn't end when Donald Trump took the oath of office. Hillary Clinton, the candidate he defeated, said in September of 2019, now note that's nearly three years after her defeat, she said this, "He knows," meaning Donald Trump, "He knows he's an illegitimate president. I believe he understands that the many varying tactics they use from voter suppression and voter purging to hacking to the false stories, he knows that there were just a bunch of different reasons why the election turned out like it did."

Now, if President Trump has now guilty of violating democratic norms, where was the mainstream media to describe the same when it came to Hillary Clinton in 2019? The Democrats who are now criticizing President Trump, and I think in many cases, quite legitimately need to turn the criticism on themselves and on the leaders of their own party for saying very similar things throughout the administration of Donald Trump.

One former democratic president, Jimmy Carter, said also in 2019, "There's no doubt that the Russians did interfere in the election, and I think the interference, though not yet quantified, if fully investigated, would show that Trump didn't actually win the election in 2016. He lost the election and he was put into office because the Russians interfered on his behalf."

Now, that's one of those statements that, A, fails the test of historical investigation, and B, is conveniently hidden by most in the mainstream media as if no Democrat would ever speak that way. But they have spoken that way routinely ever since 2016, and the man who is almost certainly to become the next president of the United States, Joe Biden, also piled on in the very same year, 2019, when he was in a campaign stop in New Hampshire, according to William McGurn of the Wall Street Journal, a woman came up to him and said, Mr. Trump was an illegitimate president in my mind. Former vice president Joe Biden's response was, "I absolutely agree." So, no one actually had the basis for arguing that Donald Trump did not win a clear majority of 306 in the electoral college in 2016, but there were many who nonetheless denied the legitimacy of his administration.

Now, as we shall see, and this is very important, this is not a particularly new development in the United States, but it is a particularly pernicious development in this country. It goes all the way back, particularly to the 1980 election and thereafter. The election of Ronald Reagan and his reelection in 1980 and in 1984 were both by landslide majority's. No one could then say that there was a problem with the count. The landslide in both cases turned out to be so overwhelming that there was no doubt whatsoever about which states Ronald Reagan had carried and just what an electoral college majority he had assembled. They were both epic. There was also no question that he had clearly won the popular vote. He won it in 1980, he won it in 1984, but nonetheless, the issue of legitimacy was cranked up even at a lower tone than today, was cranked up back then, by those on the left who complained the voters, particularly in states that had historically voted for democratic candidates, didn't know what they were doing or voted against their own interests for some reason, when they elected Ronald Reagan, whom the left dismissed as simply being a stupid Hollywood actor.

Reagan went on to serve two very successful terms in office as president of the United states, and actually consolidated the conservative movement in the United States to such a degree that he basically reset American politics for a number of decades.

But, of course, Ronald Reagan was followed in office by the 41st president of the United States, George Herbert Walker Bush, and even as the issues of legitimacy had been swirling around in recent days, and as I say, rightfully so, I was reminded of an article that had appeared in The Atlantic back in December of 2018 by Peter Beinart. The headline was, "What the Tributes to George H. W. Bush Are Missing." That was shortly after the death of the 41st president. The subhead of the article, "The 41st president was the last person to occupy the oval office whose opponents saw him as fully legitimate."

Now, interestingly, Beinart points out that the question of legitimacy in this case, especially in terms of the political elite and the mainstream media is not just about the numbers of the votes. It has to do also with the personality, the background, and the cultural identity of the candidate. George H. W. Bush, the quintessential product of the East Coast establishment, was understood as being unquestionably legit. But Beinart's point is this. No president after him was considered equally legitimate. Beinart complains that Bill Clinton in 1992 and in 1996, even though he gained clearly a plurality, the vote was declared by many to be illegitimate because he did not win a majority of the vote. Remember that he was running in elections in which you had a significant third party candidate.

In both cases, '92 and '96, Bill Clinton won a clear plurality of the vote, and he won clearly in the electoral college, but he never won a majority of the vote. That irked President Clinton, and it goes down in history as another one of those cases in which certain people claimed, well, thus, he does not have full legitimacy as president. Then along came George W. Bush, and remember, he won in the electoral college in 2000, even while fairly narrowly losing the popular vote to the then vice president of the United States, Al Gore.

It's hard for many Americans to recognize that 20 years ago, the essential question that came before the United States Supreme Court had to do with counting the votes, recounting the votes in only a small number of Florida counties. The Supreme Court by a vote of 72 on the first ground and 54 on the second ground ruled that that was not going to happen. It was not going to continue, and thus the vote in Florida would stand, and George W. Bush would win a clear majority in the electoral college while losing the popular vote.

Many in the democratic party declared from that point onward that George W. Bush was an illegitimate president. Now, George W. Bush got over that. In one sense, that became a rather quiet part of the national conversation, but that really didn't have much to do with Democrats or Republicans and almost everything to do with Osama Bin Ladin and Al Qaeda. But then remember that Barack Obama was elected president of the United States in 2008, and he was reelected in 2012. In that case, it was a certain fringe in the Republican party, or at least on the side of the right who denied president Obama's legitimacy, and did so in fact, by making claims even about the fact that he had not been born in the United States.

But if you look at the issue of legitimacy with relation to these recent presidents, and if you divide them even in a partisan nature, Donald Trump stands out because in contrast to the ones who came previously, Donald Trump, who won in 2016 clearly in the electoral college, but did lose the popular vote to Hillary Clinton, Donald Trump has taken this personally in a way that George W. Bush and Barack Obama and Bill Clinton at least didn't take so personally so obviously.

From the beginning of his political life, Donald Trump has refused to make a separation of the personal and the political. Thus, it's a pattern that is well-recognized by now. He has taken great personal offense at the claims of illegitimacy when it comes to his presidency, and thus he has, from the very beginning, suggested that if he were denied a second term, it would be because of an illegitimate voting process. But even as a general election in the United States offers all kinds of opportunity for mischief, there is as yet, and this comes from both Republican and democratic sources, no reason to believe that there is any question that in the 2020 election, when it comes to Joe Biden, he won a very clear popular victory, but he has also won a victory in the electoral college.

Now, because we care about legitimacy, we as Christians really do, we want to have every possible case of wrongful voting or of voting fraud investigated. We want every issue of malfeasance to be revealed. We want our political system to be corrected in such a way that now and in the future, there can be no real question about the legitimacy of our electoral process. A footnote on that, we'll return to one very important issue about that in just a few moments.

But in the meantime, we have to understand that what is most illegitimate is declaring that one could not lose an election other than by malfeasance. That is, in the case of President Trump, something that's fundamentally new and it's fundamentally troubling. It simply doesn't work to say that the political system is rigged in such a way that I could not have won reelection, because even if the people wanted to vote to reelect me, they could not because of a rigged election.

Now, what's really interesting to note is that if you look at the American people, that is by no measure a widespread belief. As a matter of fact, as you look at Republican elected leaders, virtually no one is willing to use any such language like that. Let me be clear and honest. I'm not a very big sports fan, but I do know this about sports. It is not an act of integrity to enter into an athletic or sporting competition with the claim that there is no way one could lose the meet, the match, or the game, unless the situation is rigged. That would be considered illegitimate from the very beginning. That would be considered illegitimate for a college football team or for a little league baseball team. It would be considered illegitimate for a boxer.

As a matter of fact, I guarantee you, I don't know much about boxing, but I do know this, the rules of boxing are such that if a competitor claimed in advance that the match were to be rigged, then the match would not happen. The boxer would not be allowed to compete. You have to enter into the process understanding the rules are as they are, and if you accept the competition, you accept the rules of the competition.

Now, there are a lot of huge issues that are attached to this, and one of them has to do with America's respect before the watching world. The watching world is made up of a lot of regimes, a lot of governments that simply can't or won't carry off a free and fair election. Thus, the United States has a major role as a constitutional Republic in demonstrating electoral credibility. When doubt is cast on that credibility by our own president, it weakens America's posture before the entire world.

But we need also to recognize that the world is moving on. Around the world, allies of the United States, including allies of Donald Trump, particularly, and this becomes crucial, in countries that are represented especially by a democratic system of government, they have signaled that they're intending to move on recognizing that Joe Biden will be inaugurated as the 46th president of the United States in January of 2021.

When it comes to the integrity, our system and the necessary respect for and confidence in our system, we also need to recognize that many of the Democrats who are complaining the loudest right now were some who demonstrated the worst behavior in 2016 and 2017. For example, representative Jerrold Nadler, Democrat of New York, boycotted President Trump's inauguration. Remember, about one third of Democrats in the House of Representatives boycotted President Trump's inauguration. Now, again, that's not often reported on.

Not only was it Congressman Nadler, but about one third of all the Democrats in the House of Representatives refused to attend President Trump's inauguration. Nadler were declared that even as President Trump was legally elected, presumably meaning the electoral college, he wasn't legitimate. The word legitimate being the very word that Congressman Nadler had deployed.

We also need to be reminded that during the impeachment process in the House of Representatives, the speaker of the house, Nancy Pelosi, Democrat of California, said that the house had to act, in her words, because president Trump was "trying to corrupt once again the election for his benefit." Trying to corrupt the election once again, it was very clear what the speaker was implying. This is the very same speaker of the house who right now is issuing ardent please that no one should ever question the outcome of an American election. Can she hear herself talk?

Now, just to be as honest as I can be, it is clear that the election in 2020 for president of the United States did not turn out as I had hoped. It is also clear that right now, President Trump's refusal to separate the personal and the political is endangering the reputation of the United States around the world, but it's also endangering President Trump's place in history, which will record not only how he came to the office in that remarkable election of 2016 when no one believed that he could win, how he served in the office for four years of making history, but also how he left the office and ensured the peaceful transfer of power, which is the hallmark of America's constitutional order.

Part

Who Sets the Election Rules? A Question from Pennsylvania that Must Be Answered

But before leaving this larger issue, I want to look at one part of it, as I had mentioned earlier, and that has to do with the question of legitimacy in the state of Pennsylvania, the Commonwealth of Pennsylvania, as it is formerly known. This has to do with the fact that the federal system and our federal courts give deference to the states to organize the elections, and the courts rarely interfere unless the states, A, hold to a policy that is clearly unconstitutional, or B, fail to uphold their own policies, they just fail to operate the election according to their own laws, the duly elected laws.

But that's exactly what is taking place in the state of Pennsylvania, not to the extent that it would change the outcome of the election, but nonetheless, to the extent that it is a crucial question of electoral integrity.

What happened that in the state of Pennsylvania, the law says that absentee ballots must be turned in by the night of the election. That would have been by the night of November 3rd. But the Pennsylvania Supreme Court intervened and added a period of time in which ballots were then to be received coming in.

On behalf of the Supreme court of the United States, Justice Samuel Alito ordered that those votes be segregated. That is that those votes be separated. The reason why that's not a bigger issue right now is because the total number of those votes is unlikely to change the outcome of the election. But nonetheless, it does come down to a basic issue of the integrity of our elections on our constitutional order.

If the legislature of Pennsylvania adopts and enacts into law policies for the election, then Pennsylvania had better follow those policies and had better follow those laws. The Supreme Court of that state should not, certainly in the days and weeks leading up to the election, decide that it is going to legislate the issue by its own authority and power.

That is the overreach of the courts that we have seen at the federal level, and it is no prettier, it is no healthier, and it is no more in keeping with our constitutional order when it happens by a state court. The editorial board of the Wall Street Journal has rightly called upon the Supreme Court to take up the Pennsylvania case in order to "put state judges on notice that they can't outright stomp on clear election rules that were duly passed by legislatures accountable to the people."

Part

Political Reality in a Fallen World: Why Politics Will Eventually Break Your Heart

As I bring these thoughts to a close, it certainly seems to me that it falls to Christians to be very honest and fair about these issues, and to recognize that as Christian citizens of the United States, the question of the legitimacy of our electoral system is a very important question. We understand that even when others may confuse it.

We also understand that in a sinful world, bad people will try to do bad things in elections, though we also understand that once we have put a system in place that is duly enacted according to legislatures, duly and rightly ordered according to our constitutional principles, and once we have the safeguards in place to make certain that even though, yes, misbehavior will take place, it is to be identified and the votes are to be clarified and justified, at that point, it is really important that Americans recognize the legitimacy of our electoral outcome.

Not, by the way, because we are assured that voters will always choose wisely. Actually, regardless of whether you are a liberal or a conservative, a Democrat or a Republican, you believe that the voters often act unwisely. But as Christians in particular, and as conservative Christians, we recognize that conserving the remarkable gains of liberty and ordered liberty in our constitutional system means that our electoral system is the best we have.

It is in the history of humanity the best shot humanity has ever had at coming up with a system of government that is accountable to the people. But if that system is going to be accountable to us, that means that we also must be accountable to the system. We can't buy in and buy out when we are either elated or disappointed in reality.

Politics, like so many other things in life, exist at least in part to break our hearts, and to keep us from ever believing that we can find total satisfaction or enduring peace, prosperity, and liberty in this life. We need to recognize that every political system, including our political system, will not only on occasion disappoint us, even at times almost break our hearts, we need to recognize that it will also ultimately disappoint those who put any kind of ultimate confidence in politics. That, if anything, is the most un-Christian posture of all.

As I told you, the things we had to think about today wouldn't be easy, but I do hope we thought faithfully.

Thanks for listening to The Briefing.

For more information, go to my website, at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on The Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce college, just go to boycecollege.com.

I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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