Robert E. Hunter
Huffington Post, 11/28/2016
The United States is on the cusp of a major constitutional crisis, the like of which has not been seen since at least the 2000 Florida recount in Bush v. Gore – and perhaps never before in modern times.
I say “cusp” rather than “actual” because the constitutional crisis might still be averted, though the aftereffects will without doubt linger; and there will also be major implications for key elements of U.S. foreign policy. What happens in the former will turn significantly on what Hillary Clinton immediately decides to do; what happens in the latter will turn in major part on what President Barack Obama is prepared to do in his remaining time in office.
I refer, of course, to Russia’s role, either real or just alleged, in this year’s presidential election campaign and the counting of ballots in key swing states.
The Green Party candidate for president, Jill Stein, has launched the potential constitutional crisis by her request for a recount of votes cast for president in Wisconsin. This is her right, even though she got only about 1.1 percent of the votes in that state and about the same percentage nationwide, and thus has no chance of being elected president. But if – if, mind you – the result of the recount is to show that Hillary Clinton in fact received a majority of the Wisconsin popular vote and thus its 10 electoral votes, then the crisis would be in full swing. A switch of 10 electoral votes would still not be enough to give Clinton a majority over current president-elect Donald Trump. He would still have 296 to her 242, well short of the 270 required for election.
But if, in addition to a change of outcome in Wisconsin, a true count of ballots in Michigan, with its 16 electoral votes, led to a Clinton win there, that would give her 258 and Trump 280. Then Pennsylvania, of the states cited by most commentators and in this article, could be decisive in either confirming or overturning the putative election result on November 8. If its 20 electoral votes switched from Trump to Clinton, she would have 278 and he only 260 and we would have a new president-elect.
Is all this just fantasy, pie-in-the-sky for Clinton diehards? Not at all. As of this writing, Trump is ahead in Michigan by slightly more than 10,000 votes out of more than 4.5 million cast, about one-fifth of one percent. (Timing is fleeting; the results are due to be certified today, November 28, though they could later be subject to legal challenge.) In Wisconsin, Trump is ahead by more than 27,000 votes, out of nearly 2.8 million, or a margin of just under one percent. And in Pennsylvania, the current margin favoring Trump is just over 68,000 out of 5.75 million cast for Clinton and Trump together, or about 1.2 percent – more of a stretch than the other states, but still within the range of possibility.
The election does not hang on the outcome of one state, as with Florida and its “hanging chads” in 2000, where the U.S. Supreme Count eventually stopped the recount. But like 2000 and the Ralph Nader vote in Florida, had Jill Stein not run for president and if all her voters would have turned to Hillary (a questionable assumption), then Clinton would have taken both Michigan and Wisconsin (but not Pennsylvania).
The Russian Hand in the Game
The point of all this math? Because numbers in a U.S. presidential election count, especially in the U.S. system of “winner take all” in electoral votes – save in Maine and Nebraska – and “first past the post.” But that is not the nub of the argument. That is the allegation widely disseminated that Russia could have hacked the vote in one or all of these three states (and perhaps others), thus turning normally blue states (Democratic) to red (Republican). These charges are serious. They have been repeated ad nauseam, both by people supremely unhappy about the election results and by major media outlets. But they have only just become serious for U.S. politics and the proper functioning of our constitutional system by the Clinton campaign’s endorsing of the Stein recount effort. This can be understood, given that there are currently only about 107,000 votes separating Trump and Clinton in the three states cited here. And it is proper, in the words of Clinton’s campaign lawyer, Marc Elias… “to participate in ongoing proceedings to ensure that an accurate vote count will be reported.”
But then Elias crossed the line, by saying that the Clinton team had “quietly taken a number of steps in the last two weeks to rule in or out any possibility of outside interference in the vote tally in these critical battleground states.” For “outside interference,” read Russia and, more specifically, its president, Vladimir Putin. This has, in fact, been a continuing theme employed for months by the Clinton campaign and also endorsed by top officials of the U.S. Intelligence Community, most recently a week after the election by the Director of the National Security Agency, Admiral Michael Rogers, who testified about Wikileaks’ release of hacked Democratic emails during the campaign: “This was a conscious effort by a nation-state to attempt to achieve a specific effect … This was not something that was done casually. This was not something that was done by chance. This was not a target that was selected purely arbitrarily.”
Previously, on October 7, this and other efforts to interfere in the U.S. presidential campaign were formally denounced by the offices of the Director of National Intelligence and Homeland Security: “The U.S. Intelligence Community is confident that the Russian Government directed the recent compromises of e-mails from U.S. persons and institutions, including from U.S. political organizations … These thefts and disclosures are intended to interfere with the U.S. election process.” Notably, this supposed Russian hacking, channeled into the public domain through Wikileaks, centered on emails to and from the head of the Clinton campaign, John Podesta. He responded as follows: “This level of meddling by a foreign power can only be aimed at boosting Donald Trump and should send chills down the spine of all Americans, regardless of political party.’’ He also charged Trump with “continuing to side with the Russians.”
This kind of comment is “all’s fair” in an election campaign but, if true, it still has serious implications for the way we conduct our elections – though, of course, the United States has engaged in similar practices around the world since the beginning of the Cold War. Still, that should not make us feel comfortable about what the Russians may have been doing; though the exploiting of these events by a U.S. political party assumes that we, the American people, are all dolts and easily manipulated, a sad commentary on confidence in our democracy.
Hillary Clinton Must Demand Recounts in Michigan and Pennsylvania
Why is this a potential constitutional crisis of major dimensions?. Even though the Clinton campaign says it is joining Jill Stein’s recount effort solely for laudable reasons connected with the conduct of free and fair elections, in practice it can have only one true motive: to see whether it is possible to reverse the outcome of the November 8 election. Fair enough. But if the Clinton campaign joins a recount in one state, it has an obligation to demand recounts in all three of the swing states.Otherwise, unless there is a squeaky-clean bill of health about the electoral process in Wisconsin, proof-positive that there was not, nor could there have been, any hacking, a cloud will always hand over the 2016 election. And it will be a Russian cloud.
So, this is “put up time” for the Clinton campaign and the candidate herself (I did not say “shut up” – that is not admissible in our democracy). In fact, by joining the Wisconsin recount, the Clinton campaign has now incurred an obligation to the American people to go “all the way” and seek to scrutinize all the other states where Russia might have played a role. Anything else by Hillary Clinton is a disservice to the nation. We must all hope that the Wisconsin vote will prove to have been “squeaky clean,” but unless a recount is conducted in at least Michigan and Pennsylvania, as well, we can never know for sure. And that is corrosive of the Democratic process and would serve to de-legitimize the next president of the United States. (The whole mess, like that of the 2000 Florida recount, also makes the U.S. look to the outside world like a banana republic.)
Ironically, a far worse threat to U.S. democracy comes from the denial of the vote in the recent election to tens if not hundreds of thousands of Americans, predominately people of color, in states that welcomed the vitiation by the Supreme Court of key elements of the Voting Rights Act. This has received almost no media coverage and even less political action. And, of course, there is the travesty of the Electoral College system, which could be quickly corrected if 48 states would follow the lead of Nebraska and Maine by apportioning electoral votes by congressional districts. Then, Hillary Clinton’s more than 2 million vote plurality would have made her president, as in any serious democracy would have happened. But this will not be done, more’s the pity for the integrity of the U.S. political system.
The Foreign Policy Damage
No one in this country or throughout most of Europe wants to be saying nice things about Vladimir Putin, and he does have a lot to answer for. And if there were Russian efforts to interfere in our election, by however small and perhaps even inconsequential amount, we cannot ignore it, as leading media outlets have reminded us. At the same time, Donald Trump made himself an easy target by positive things he said about Putin, and by his telephoning the Russian president so soon after the U.S. election. Again, in the heat of the election, fair’s fair. But it is also potentially counterproductive for U.S. interests in the world, especially in dealing with Putin’s Russia, and certainly in having the flexibility to choose different tactics and perhaps an overall strategy different from the one the Obama administration is now pursuing.
Thus, even if, as currently expected, Mr. Trump is inaugurated as president on January 20, he will find it more difficult to try something different in U.S. relations with Russia. Further, both countries have for some time been drifting deeper into confrontation with one another, reinforced by anti-Russian constituencies in the U.S. and some countries in Central Europe who most recently suffered from Soviet occupation.
As noted above, in trying to head off a constitutional crisis at home regarding the recent election, Hillary Clinton now needs to act; and in trying to prevent the growth of tensions and even some form of Cold War with the Russian Federation, President Barack Obama needs to act. Perhaps the facts are indeed clear on Russian “meddling.” If so, Obama needs to present the case from his position; if the evidence is not that strong, he needs to make that clear. And he also needs to argue that U.S. interests in the outside world, including in dealing with Russia, need to be uppermost, whether Trump is confirmed in power or is superseded by Clinton. Too much is now at stake, both for our constitutional processes and for U.S. foreign policy, for there simply to be silence or passivity.