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US Election 2020: five big questions

Published: 27 October 2020
Jacob Eisler, Biden and Trump

Dr Jacob Eisler, Associate Professor of Public Law at Southampton Law School, has a particular interest in the US electoral process, campaign finance, and corruption. He also has an interest in how technology is re-shaping the social context of voting and other types of political expression.

With the 2020 US general election coming to its climax, Dr Eisler answers five big questions about the impact of the election result and the part COVID-19 has played in the outcome.

The biggest influence on the outcome of the 2020 US election is likely to be . . . the Covid-19 pandemic (unsurprisingly).

Voters are responsive to their immediate circumstances, and the pandemic has quickly wrought vast misery in the US.

Incumbents typically have a natural advantage - the presidency would have been Trump's to lose - but a mixture of illness and economic crisis in the year of an election would challenge even the best president. It also gives Biden (not the most compelling candidate in normal circumstances) a strong and obvious critique of Trump, which he has not failed to hammer at every opportunity.

It also strengthens his implicit appeal as a link to Obama - who wouldn't prefer to return to 2016, or 2012?

The pandemic is especially bad for Trump because it illuminates the weaknesses of his machismo-fuelled, instinct-driven populism, and ruined one of the crown jewels of his presidency - a hot economy.

His policy response was lacking (travel and movement restrictions - the one type of action that would have fit Trump's broader anti-immigration agenda - were not implemented in a timely fashion; he contradicted and undermined the experts best positioned to help fight the crisis; and he underplayed it at precisely the wrong time and with the wrong tenor), has refused to confront the real costs and risks of the pandemic, and doesn't do a good job of showing the type of empathy needed during a complex crisis of this sort. Trump could not bluster his way out of this crisis.

If Joe Biden wins the election, his first priority is likely to be . . . unifying a fractured nation, probably most immediately by passing an additional stimulus bill.

Biden will need to rally the legislature to obtain a mandate for governance, select an array of policies that will placate his diverse constituency, and do so in a manner that won't excessively alienate even those on the right.

Biden will face an unenviable task - he inherits a polarized country in the midst of a multi-faceted crisis. He won't be able to make COVID-19 vanish: he will need to develop a coherent plan for a health plan that is visibly different from and more effective than Trump's, without exacerbating the economic effects. Expect massive stimulus spending and an attempt to vindicate the technocratic liberalism that Clinton, Obama and now Biden stand for.

With the confirmation of Amy Coney Barrett, Biden will also have to decide how to tackle a Supreme Court that is now majority conservative. While those on the left have called for immediate courtpacking, this would be an unprecedented act (though arguably only a response to the rushed Republican nomination that violated the very norm that they advanced in 2016 to obstruct Obama's candidate, Merrick Garland).

History also demonstrates it might not be necessary, as judges have the prudence to subtly shift with changing political winds. The most recent instance of this is John Roberts' alliance with the progressive justices to uphold Obama's health plan overhaul in 2012. But 70 years ago, when Franklin Delano Roosevelt controversially tried and failed to pack a Supreme Court, it turned out to be unnecessary - the judges began to rule more favorably towards Roosevelt's New Deal legislation that same year.

Whether a court-packing plan by Biden would be as controversial as Roosevelt's, whether the conservatives on the Supreme Court would change their views to match the majority of the US, and how much patience the Democrats will have to wait and see if the Court will be as conservative as they fear -  all be critically answered in the first year of a Biden presidency.

If Donald Trump wins the election, his first priority is likely to be . . . maintaining shreds of legitimacy in light of a victory that will almost certainly be minoritarian and addressing resistance that could range from riots to prolonged litigation.

Trump is the least popular president in modern history, and even if he squeaks out a win by swinging key states, he will not have the majority of American voters behind him. Blue states - and blue state leaders - will be forced to determine if they are willing to cooperate with federal policy. The Democrats are almost certain to maintain control of the House and might even swing the Senate - and might feel compelled to not cooperate with Trump.

If Trump and his Republican allies want to continue any sort of effective governance, they will need to find some way to cooperate with Democrats (again, most immediately with COVID-19 health and economic policies). Desperate times can make for strange bedfellows, but the last time there was such polarized hostility in the US, it ripped the country apart.

This could become especially ugly in light of a contested election. Trump will probably want to take strong action to establish his legitimacy, which could elicit even more vociferous and immediate responses from Democrats and make long-term governance impossible. A paralyzed government in the midst of the pandemic would exacerbate a humanitarian crisis and ironically enough force Trump to innovate creative ways of governing to, for example, distribute a vaccine or provide economic relief. But such unilateral governance would only exacerbate claims that Trump is violating norms.

Without COVID-19, the 2020 US election would have looked like . . .a much closer election driven by polarised identities.

Prior to the pandemic, Trump was able to point to a strong economy and a nationalist tenor to his governance, and claim to his supporters he delivered on his promises (particularly to deliver a conservative judiciary). Economic strength is a key indicator of if a president in office will retain office, which would have favoured Trump prior to COVID-19. Yet Trump's populist approach is sufficiently alienating that there still would have been a strong push to unseat him on the left. The election would have been driven by wedge group identities, with Democrats hoping to increase turnout among pro-life voters, young progressives, and minorities, and Trump hoping to cast himself as the new identity of the Republican party to consolidate support among conservatives and evangelicals.

Without COVID-19, the positions of the candidates would be very different. Biden - very much an establishment candidate - would have had a much harder broad-spectrum pitch, and instead would have had to focus on rallying supporters instead of broad discontent. Biden would have invoked continued economic and social inequality and corruption in Trump governance, to which Trump would have reacted by arguing that Democratic policies would hamstring the economic gains of the past four years and introduce policies hostile to the Republican base - partisan business as usual, but nastier and with a strong dose of Trumpian populism. One unclear question is if, without COVID-19, any Republicans would have turned on Trump (as some, such as Senator Ben Sasse, have in the past few months), or if they would have rallied behind him, perhaps even more dramatically reshaping the Republican party.

If the election is close and contested, the likely outcome is . . . extremely unpleasant.

The nightmare scenarios involve evidence of fraud around votes or procedural irregularities, followed by their resolution by institutions which are seen as partisan. If Trump allies - Republican appointed political operatives, or a judiciary that Trump has stacked with conservative judges - reach a decision that favors Trump, it could lead to broad Democratic rejection of the legitimacy of his presidency. If Biden wins a very close election, with or without procedural complexities, Trump could refuse to leave office.

The worst-case scenarios lead to constitutional crisis and potential de-legitimation of US democracy, as the next president would not only lack a strong mandate, but the belief by many in the nation that he is a valid leader. Under normal circumstances, one might hope that a president would try to establish legitimacy through fair-handed, non-partisan decision-making. Yet any such conciliatory governance would be highly unlikely from Trump; and Biden would be under pressure from the left to play hardball if he assumes office (especially after the Barrett confirmation literally a week before the election).

One unprecedented possibility is a slow outcome as the much greater volume of mail-in votes prove decisive (in some states votes can't be counted until election day; and in some states votes mailed from abroad just need to be post-marked, rather than arrive, by election law). It's hard to predict the effects - it could slow the decision process, which in an ideal world of civic cooperation would reduce the drama. Yet it could also lead to political grandstanding by each candidate or competing claims of pre-emptive victory, heightening any conflict.

The views expressed in this article are those of the author and do not reflect the views of the University of Southampton or the Southampton School of Law.

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