Biden would struggle to govern and reform
Absent Democratic Senate control, a Biden administration faces legislative roadblocks
Counting continues today in the close presidential election between Republican President Donald Trump and Democratic former Vice President Joe Biden. The race is edging towards Biden. Trump is contesting the outcome and will continue doing so until January 6 when Congress has to certify whether the Electoral College has re-elected him or elected Biden president, ahead of inauguration day on January 20.
What next
Trump's unprecedented strategy is to allege fraud over late-received mailed-in ballots and use that to stop the counting of votes in swing states likely to favour Biden. In such a febrile atmosphere, further civil unrest is likely. Whatever the election’s outcome, the country will remain bitterly politically divided, with trust in US election legitimacy and democracy strained.
Subsidiary Impacts
- Democrats may be able to end the Republicans’ Senate majority if there are two run-off elections in Georgia in January.
- The failure of a Democratic ‘blue wave’ will reopen party fault lines between centrists and progressives.
- A narrow Biden victory with a Republican-led Senate would make rolling back Trump’s 2017 corporate tax cuts unlikely.
- Pollsters face questions about their work’s accuracy and political influence, especially capturing rural political feeling.
- Calls to replace the Electoral College system could grow, but change would need a constitutional amendment.
Analysis
With record turnout by over 143 million voters amid COVID-19, voting on November 3 was relatively seamless, partly thanks to record early voting (see UNITED STATES: Swing states will decide election - November 3, 2020). Fears of widespread chaos, malfunction or intimidation at polls were not realised; federal authorities say they did not detect meddling by foreign powers (see UNITED STATES: Risks around poll may disrupt results - October 28, 2020).
Street protests were small and in cities where there had been pre-election unrest, though more are happening as results are awaited. The shifts in vote tallies towards Biden in the hours after polls closed were expected, as mailed-in ballots started to be counted.
Trump continues to disparage mail-in voting as being susceptible to fraud, something he argued long before election day. The progress of election-related legal challenges could incite further popular protest if political leaders stoke sentiment in support of claims of voting fraud, or court decisions appear politicised (see UNITED STATES: Barrett confirmation will help firms - October 27, 2020).
Legal challenges
Trump and the Republicans have three ways to contest the election's result:
Recounts
Trump has called for a recount in Wisconsin, which Biden looks to have won by just 0.7 percentage points. Historically, recounts narrow the victory margin but rarely reverse the result. However, recounts can allow campaigns closer scrutiny of ballots, which may identify some that they can get disqualified for errors.
Litigation
Legal challenges are common during US elections. Both sides have 'lawyered up' in preparation. Trump's campaign and its proxies turned to the courts pre-election to limit mail-in vote counting, with mixed success.
Suits will now proliferate at state and county level, to limit counting of mail-in votes and disqualify votes cast with errors. Trump has said he will take the voting fraud he alleges (without substantiation) to the Supreme Court. He cannot do that directly. If a case reaches the Supreme Court via lower courts, it is likely to be state-specific.
However, while the US Justice Department has traditionally avoided involvement in election litigation, Attorney General William Barr supports Trump. His department might file suits based on federal election law that could provide a pathway to the Supreme Court.
The Supreme Court could prove decisive in post-election legal battles
Electoral College
A 'nuclear option' would be to get Republican-controlled state legislatures in swing states where Biden leads to disregard the popular vote and choose instead Electoral College electors who will vote for Trump.
There is arguably constitutional scope for pursuing such an extraordinary course. However, it would draw legal challenge and be without parallel since the disputed 1876 election, when several states sent competing slates of electors.
Blue wave
The Democrats' hoped-for 'blue wave' (winning the presidency, a Senate majority and increasing their House of Representatives majority) has not happened. Republicans increased their House representation, cutting the Democrats' majority to single figures, and are poised to hold the Senate.
Trump's stronger-than-expected showing, especially in the South, appears to have boosted his party's down-ballot candidates, likely due to effective in-person get-out-the-vote efforts. Exit polls also suggest 'ticket splitting', with 'never Trump' Republicans preferring Biden over Trump but otherwise voting Republican for Congress.
Control of the Senate could rest on whether both races in Georgia proceed to a run-off in January. State law demands this if the winner fails to get at least 50% of the vote. One race is now confirmed to go to a run-off on January 5; the other seems likely to follow.
Democratic victory in both races is hardly certain, but if it happened it would tie the Senate 50-50. If Biden became president, his Vice President Kamala Harris would break any tied votes. Thus the Democrats would control the presidency, Senate and House.
Georgia could hold the key to who controls the Senate from next year
However, the Senate's filibuster, which requires 60 votes to advance legislation, would have to be ended or curtailed (as it has for confirming appointees) to make a simple majority sufficient; some Democratic senators might disagree. Republicans could also win back the Senate and maybe the House in 2022.
Next Congress
Absent Senate control, a Biden presidency would suffer legislative gridlock. That would see Biden reliant on executive orders to govern, which are susceptible to lawsuits, and on a president's traditional freedom of action in foreign policy (see UNITED STATES: Democratic win would see wide change - October 15, 2020).
For example, if Biden wins, he can return the United States to the Paris climate accord within 30 days. Yet he will be unlikely to be able to get legislation passed to implement climate control measures in line with pre-election policy proposals.
Republican control of the Senate would see many Biden initiatives blocked
A Republican Senate would also limit Biden implementing expanded economic stimulus to counter COVID-19's effects. It would also obstruct confirmations of Biden's government nominees and block Democratic spending proposals.
Without a Senate majority, a Biden administration would not be able to expand the Supreme Court to overturn the Trump-appointed conservative majority, although even with a majority Biden might not choose to do so.
Should Trump be re-elected, he would be freer to pursue increased technology separation and a trade war with China, increase regulatory roll-backs and reduce US military commitments overseas. However, a Democratic-controlled House would also mean he relies on executive orders (see UNITED STATES: Second Trump term would be constrained - October 23, 2020).
Partisanship
Whatever the election's outcome, the political class and civil society will remain bitterly divided, particularly if a defeated Trump remains active rallying opposition to Biden and maintaining the narrative of a 'stolen election'. Trump got 6.7 million more votes than in 2016, implying that his brand of bombastic, populist Republicanism resonates with a growing number of citizens.
Within the Democratic Party, fault lines between progressives and centrists will re-emerge quickly, especially given Democrats' House losses -- there are already recriminations. The likely constraints on Biden being able to advance legislation on climate and economic and racial justice sought by the party's progressives will exacerbate intra-party stress.
Detailed analysis of voting demographics will take time, yet the failure of the 'blue wave' to materialise also suggests Trump has regained the support from white, college-educated women that had wavered in the 2018 midterms as well as picking up support from Black and Hispanic men and rural voters. That challenges Democratic assumptions about the demographic tide that is assumed to favour them.
