The 2020 US presidential election: nine lessons

As reported in the latest issue of Monitor, the US presidential election raised even more constitutional issues and questions about the US system of elections than many anticipated. Colin Provost and Nadia Hilliard of the UCL Centre for US Politics discuss how the election was administered, and the roles of the judiciary, Electoral College and social media in the process.

The US presidential election of 2020 has been perceived by many observers as one of the most important elections in American history. A highly polarised electorate turned out in record numbers in the middle of a pandemic and for the first time, the incumbent president refused to concede after a clear result, while pushing a steady, yet unsubstantiated series of claims about voter fraud and voting irregularities. Given the highly unusual set of circumstances surrounding this election, it is worth considering how well US institutions performed with respect to the conduct of a free and fair election, and what lessons should be learned for future electoral cycles.

1. States can run elections smoothly.

Although federal laws that are harmonised across the states might seem to make more sense for national elections, the US Constitution allows each state to set its own election laws, as long as they are in compliance with the 1965 Voting Rights Act and other relevant, federal legislation. Keeping that in mind, it is important not to understate the fact that, on average, the states performed well in terms of administration of this election. Despite the pandemic, millions of people were able to vote and perhaps more importantly, a large subset of those people were able to vote by mail, so that they would not have to put their health in jeopardy by waiting in long – and often cramped – queues. Ultimately, those votes were all counted, even if a victor could not be declared until 7 November —five days after election day.

2. US electoral institutions are resilient.

The institutions of election administration proved to be resilient in the face of baseless allegations of voter fraud and voting irregularities: those allegations were many, and continue to be made. In a normal election year, post-election lawsuits are practically non-existent, but in 2020, the Trump campaign filed dozens of lawsuits across several states, nearly all of which have been found to be lacking in merit, while tweeting inaccurate information about the election and its results. Georgia senators David Perdue and Kelly Loeffler suggested that Georgia Secretary of State Brad Raffensberger – the state official in charge of overseeing elections and certifying the results – should resign after not finding evidence of electoral fraud in that state. Additionally, President Trump invited the leadership of the Michigan legislature to the White House, apparently with the goal of getting them to nominate different electors to the Electoral College that formally votes in the new president than those selected by the Michigan Democratic Party. The only legal basis for this occurring is if one believed that Joe Biden did not clearly or lawfully win the state, even though his margin of victory was in excess of 150,000 votes. Finally, a large number of Trump allies in Congress, the media and elsewhere supported these actions, implicitly or explicitly. Despite all these challenges, the votes were counted and certified by all 50 states and the District of Columbia.

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Executive Orders in the Trump presidency: a short introduction

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Since Donald Trump’s term as US President began in January his use of Executive Orders has been high profile and highly controversial. In this post Nigel Bowles explains what these are. He writes that the constraints upon their use are contestable, contested, and contingent, but that to be effective they must at a minimum be competently and intelligently drafted. Trump’s ‘immigration ban’ order fell short of this standard.

Whatever else President Trump might yet contribute to academic and popular understanding of the power of the United States presidency and the rule of law, he has already reminded the world that the occupant of his office has the institutional means to disrupt settled orders of public policy, to scorn norms established by predecessors, and to breach customary standards of presidential behavior. At the second and third of these three activities, President Trump excels. But his talents in these arts will not help him craft a productive presidency in a system of coordinate governing institutions. For that, he will need a sense of purpose, a feel for power, and a recognition that he is as obliged as any other citizen to comply with legal and regulatory requirements. Unless the President quickly comes to appreciate those qualities’ importance, the cost to his professional reputation within Washington and beyond is likely to be high. The first month and more of his noisy administration indicate that his standard mode of organisational leadership is caprice. That is no basis for government in any system, especially one such as that of the United States which sets high institutional barriers against those who show disdain for the customary rules of political coalition-building.

Despite his advantage in having Republican majorities in both the House and the Senate, the President has chosen not to engage on legislation with those majorities but instead to rely upon unilateral moves. He has spent precious capital on quotidian and querulous hectoring via his Twitter account, including using that platform to denounce public institutions and those committed to pursuing the public good for being the people’s ‘enemies’. Such behaviour might in the short-run please his political base, but is unlikely to advance his broader purposes (whatever they might prove to be).

A more established unilateral option is that of the issuing of Executive Orders, instruments of presidential authority with considerable potential effect. In issuing such orders, presidents have the opportunity to alter both policy content and the politics of that policy. Here, presidents can and may exploit the advantage of their office’s singularity. They can by their decisions do what individual senators, representatives, and federal judges cannot. They may, as Kenneth Mayer has written (pp. 4–5), change policy’s content and its administration, reorder executive branch agencies, and set out what they will and will not understand by those provisions that Congress writes into law.

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Monitor 65: Testing constitutional times

The latest issue of Monitor, the Constitution Unit’s regular newsletter, has been published today. The issue covers all of the major UK constitutional developments over the past four months, a period that has included the High Court and Supreme Court rulings in the Article 50 case, the unveiling of Theresa May’s Brexit plan and the election of Donald Trump as President of the United States, plus much else besides. The front page article is reproduced here. You can read the full issue at this link

monitor-65-coverPolitics remains fast-moving. Its unexpected turns have raised fundamental questions about the constitutional order, in the UK and beyond – including the rightful place of voters, elected legislators, governments and judges in political decision-making – as well as the media’s role in questioning those decisions.

Here, Brexit remains the dominant preoccupation. The previous issue of Monitor reported how ‘ministers have repeatedly insisted that they are in charge of the Brexit negotiations and that to reveal their hand to parliament in advance would weaken their negotiating position’. A lot has changed since then.

Following rulings by the High Court on 3 November, and Supreme Court on 24 January, ministers had to accept that they require parliamentary approval to trigger Article 50; at the time of writing, the European Union (Notification of Withdrawal) Bill has now passed through the Commons and awaits scrutiny in the Lords (see page 3). Even before the bill’s introduction, the government had conceded (in December) that its Brexit plan would be published prior to triggering Article 50, and (in January) that this would include a white paper – commitments necessary in order to see off potential Commons defeats. With help from the courts, parliament has rediscovered some of its teeth.

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The US presidential transition will occupy the Trump administration for months to come

Donald Trump will be inaugurated as the 45th US President next week, but the vast task of assembling the new administration will continue for months to come. In this post Donald F. Kettl explains what America’s unique transition process involves and outlines what progress Trump has made so far.

There is nothing in the world quite like the American presidential transition. In the foreground is the mega-debate about how the new president will shape policy (see our previous blog posts, here and here). But in the critical background, there is the incredible job of actually putting the new administration together, a challenge unlike that facing any other major democracy in the world.

It is an unusually long stretch between the election and the start of the new administration –10 weeks, compared with the virtually instantaneous transition in the United Kingdom.

In the US, the transition involves far more people – nearly 700 top officials, who head government agencies, nearly all of whom require confirmation by the Senate. There are another 4,000 appointees across the government, including policy assistants and political staffers, that the president appoints and who do not require Senate confirmation.

In the US, many of the appointees come into government with relatively little preparation. Despite constant warnings from experts about the need to plan months before the election for the complexity of the transition, the search for cabinet ministers often doesn’t begin in earnest until after the election. British transitions are much easier, with shadow ministers in the opposition bird-dogging the government, with fewer positions to fill, and with no separate legislative confirmation process.

For better or worse, there are reasons why the American system has evolved in this way. The transition period is actually shorter than it used to be – until 1937, the inauguration was in March, because it often took months in an agrarian society for newly elected officials to put aside their work and make their way to Washington. Having so many political appointments has long been thought to be a good thing, at least by some people, because it provides a way for new presidents to put their stamp on the workings of government. Senate confirmation has provided a reinforcement of the checks-and-balances system on which the US Constitution builds.

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The Trump administration is likely to run into major obstacles in policy implementation

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In a recent post on this blog Nigel Bowles argued that Donald Trump will largely be able to carry out his policy agenda when he becomes US president in January. In this post Colin Provost joins the debate, concluding that in the areas of trade, health care, financial regulation and climate change Trump is likely to run into major obstacles. This is because many of Trump’s campaign pledges involve large, complex governing systems and he will have limited control over these systems in their entirety.

Nigel Bowles recently wrote on this blog that President-Elect Trump will be able to push through key parts of his policy agenda in the coming four years, because of the powers afforded to him by the US Constitution and because collective action problems within Congress will prevent meaningful attempts to block his agenda. Many of Dr Bowles’ points are correct and some scholars may argue he does not go far enough in articulating the strengths of the administrative presidency. However, President-Elect Trump has made numerous grandiose promises which potentially affect large policy making networks. The more groups he touches, the more resistance he possibly engenders, thereby making policy making a grinding and tortuous battle. In this post I look at Trump’s proposals for trade, health care, financial regulation and climate change and conclude that his administration is likely to run into major obstacles in each of these areas.

As Dr Bowles has articulated, Donald Trump benefits from collective action problems in Congress and a broad range of constitutional, as well as unilateral, powers. Since the Nixon administration, every president has presided over what Richard Nathan referred to as the ‘administrative presidency’. The president ideologically steers dozens of federal agencies through appointments, s/he can also impose new substantive and procedural requirements on agencies through the use of executive orders, and s/he can employ ‘signing statements’ which enable the president to specify which parts of the law by which s/he would abide. Perhaps most importantly, Terry Moe and William Howell have argued that the Constitution’s language that the president ‘shall take care that the laws be faithfully executed’ builds ambiguities and discretion into the formal power structure that the president can shrewdly exploit.

Moreover, Trump will have Republican majorities in Congress, as well as a conservative Supreme Court after Trump likely pushes aside Merrick Garland in favour of a more conservative nominee. However, many scholars have noted in recent decades how we no longer study ‘government’, but ‘governance’. Implicit in this concept is the idea that governing is performed by a very large coalition of actors involved not only in a national government, but in subnational governments, in foreign governments, in markets, in non-governmental organisations, in the media, in think tanks and so on. These actors do not all represent veto players of equal power, but taken together, creative means of resisting policies can often be formulated and applied. When we look at some of the President-Elect’s proposals closely, we can envision how his proposals may not be implemented to the extent he would prefer.

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