The national nightmare is not over yet; the alarm has gone off, but there's a two-and-a-half-month-long snooze button, of which more anon.
When, exactly, did the alarm clock ring? The Orange One is not conceding, which really shouldn't surprise anyone: It requires a level of self-awareness without self-regard not apparent in any act (or omission or statement) of this Administration. Further, conceding an opponent's superiority, or even single fine play, is a gracious act that requires an underlying sense of decorum, of refined manners, of common courtesy, that has been missing from this White House since 20 Jan 2017 and from this Administration's titular head since approximately 1946.
But there are three fundamental reasons that it took until Saturday. First is the foolishness of the Electoral College; had this been a "straight popular vote," we would have known by midday Wednesday, when Biden's margin in the national popular vote exceeded the total number of ballots remaining to be counted. (That the Electoral College is supposed to protect against electing a virtually unknown demagogue, but was gamed by one to enable his election in 2016 with a distinct minority of the popular vote, just underlines its foolishness.) Second is the misconduct of Heffalump fleeting majorities (and sometimes minorities) at the state level to suppress votes and throw as many roadblocks as possible into efficient counting, such as prohibiting the counting of mailed-in ballots in Pennsylvania (absentee or otherwise) until 03 Nov. These are both longer-term problems that require longer-term solutions… including a Voting Rights Amendment that both enshrines the Voting Rights Act of 1964 (including §§ 2 and 5) and eliminates the Electoral College.
Nonetheless, there's one area in which no government action is required that led to further confusion and continues to reinforce The Orange One's intransigence: The media's refusal to accurately and clearly present election results or make "calls" based upon them. This has been nonpartisan. It is, in part, a legacy of Bush v. Gore; CNN has arguably never recovered its credibility after calling Florida for Gore. This is not limited to "liberal" or "conservative" media. More to the point, though, it's sheer management incompetence and fear. Managers are afraid of "being wrong" — something that anyone with an actual background in journalism, politics, military leadership, law, or anything based on either evaluating or resolving actual conflict sneers at because they all understand that "being wrong" at times is the nature of playing the game. But it's also a subtle self-indictment of themselves, because media management is also indicating by its failure to actually use results that it has, as they would be used by actual decisionmakers in government, that management has no confidence in the corrective measures put in place since the 2000 election — measures that have been tested in four previous Presidential elections. Management, however, doesn't pay the price for this; the rest of us do. (Management will continue to do well on its stock-option-based compensation formula because the markets generally reward not taking risks with higher stock prices.)
It's not that long since Halloween, though. There is still a horror show to come. At least one relative of his (with appropriate professional qualifications and first-hand knowledge to weigh with conflicts of interest) agrees. It's going to happen across the government and the rest of American affairs. But as damaging as that would be, it's not the worst he can do. Ford, Carter, and GHWB resisted the most partisan and aggressive "noncooperation" measures suggested by some of their advisors (some of which are not public knowledge). This time, the resistance would have to go the opposite direction, and I'm frankly concerned, because this time the guy with his finger on The Button is the one in need of self-restraint, and we've seen the lack thereof for decades. I have no confidence whatsoever that this Vice President, and/or this Cabinet, have either the intelligence or moral fortitude to invoke U.S. Const. Amd. XXV § 4… because if they did, they would have done so by midafternoon yesterday.
Last for now, and far from least, I remind every attorney who is filing election challenges of two of your fundamental duties:
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. Proc. 11(b) (and there is an equivalent in Arizona, Georgia, Nevada, and Pennsylvania civil procedure); and
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Comment 1 The advocate has a duty to use legal procedure for the fullest benefit of the client’s cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law’s ambiguities and potential for change.
Comment 2 The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good-faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good-faith argument on the merits of the action taken or to support the action taken by a good-faith argument for an extension, modification or reversal of existing law.
Ill. R. Prof. Cond. 3.1 (substantially identical in Arizona, Georgia, Nevada, and Pennsylvania).
A client's subjective belief, without more, is not a basis for either "an inquiry reasonable under the circumstances" or "a basis in fact that is not frivolous." (Internet-breaking string citation omitted.) Conduct yourselves accordingly.