The U.S. election just became more uncertain

Published in The Hindu on 10th October, 2020

All elections are unpredictable and American presidential elections are no exception. Yet, such is power of incumbency that there have been only four occasions since 1900 where a sitting and elected President has been defeated by his challenger for a second term. The 2020 election was shaping up to be cliff-hanger when President Donald Trump announced Friday last week that he and First Lady Melania Trump had tested positive for COVID-19, further darkening the clouds of uncertainty. He returned to the White House after three days of hospitalisation but question marks persist.

One term presidencies
In 1912, Democratic challenger Woodrow Wilson scored a decisive victory over President William Taft, seeking his second term. However, the reason was a divided Republican vote. President Theodore Roosevelt, the US president from 1901 to 1909 had supported Taft for his first term. Subsequently, he got disenchanted and eventually split the Republican party, running as the candidate of newly established Progressive party, and coming second in the race. Taft, already weakened with the infighting in the Republican party, emerged a distant third.

The second one-term president was Herbert Hoover, defeated in a landslide victory by his Democratic challenger Franklin Roosevelt in 1932. This election was fought against the backdrop of the Great Depression. Roosevelt won on the promise of the New Deal and then went on to win in 1936, 1940 and 1944. By the time he began his fourth term in January 1945, he was already suffering from high blood pressure and congestive heart disease and died three months later. Till then, there was no restriction on the number of terms for president; the two-term limit was introduced with the 22nd constitutional amendment in 1951.

In 1976, Democratic challenger Jimmy carter defeated President Gerald Ford who had taken over the presidency after president Nixon resigned when faced with the threat of impeachment. He had earlier been appointed (not elected) Vice-President in 1973 when Vice-President Spiro Agnew resigned. In US history, Ford is the only one to have held both positions of Vice-President and President without having won an election to either.

1970s was a decade marked by an energy crisis sparked by oil price hikes, high inflation, economic downturn and rising unemployment. The US Embassy hostage crisis in Tehran in 1979 following the Islamic revolution in Iran became emblematic of eroding confidence among the people that made it easier for Republican challenger Ronald Reagan to trounce Democratic incumbent President Jimmy Carter in 1980. Democratic party was already polarised as Senator Ted Kennedy had challenged President Carter in the party primaries.

Both 1932 and 1980 also marked deeper power shifts; in 1932, Democrats took back Congress continuing till 1950s, introducing social security; the 1980s saw the return of the Republicans with promises of tax cuts and supply side economics.

The last one term president in the 20th century was George H W Bush who had won easily in 1988 after being Reagan’s Vice President for eight years. He lost his re-election bid to rank newcomer, Democratic challenger Bill Clinton in 1992 despite having notched up a series of foreign policy successes during the first term – Soviet withdrawal from Afghanistan followed by the unification of Germany and the break-up of the Soviet Union. “It’s the economy, stupid”, became the catchphrase of the successful Clinton campaign.

Unresolved questions
The handling of the COVID-19 pandemic was going to be an issue but President Trump testing positive raised a bunch of fresh questions – about implications for continuity for government, and, for the election campaign leading to polling on 3 November and its follow-through till the winner takes office on 20 January 2021.

Presidential succession to ensure continuity of government was addressed in the 25th constitutional amendment (1967), triggered by the 1963 assassination of President Kennedy. In case a president dies, resigns or is otherwise incapacitated, the succession moves to the Vice President, and then on to the Speaker of the House, the president pro tempore of the Senate and the members of the Cabinet beginning with the Secretary of the State.

Campaign continuity is more uncertain. Elections are held every four years in November on the Tuesday after the first Monday of the month. Changing the date would need bipartisan consensus, hardly likely when the country is in the throes of a campaign. This year, the popular election on 3 November will be followed by the 538-member Electoral College voting on 14 December.

Congress will certify the Electoral College vote on 6 January 2021 officially declaring the president (and vice-president) who will assume office at the inauguration on 20 January. During this, when exactly does the winning candidate become “president-elect” is a question on which legal experts still differ.

There is no legal guidance in case a candidate dies or is unable to campaign shortly before the November polling or anytime thereafter. For 2020, in any event, the ballot papers are already printed and millions of postal ballots were cast when the question surfaced.

Were a vacancy to arise after 3 November, the Electoral College will be guided by the two political parties since the primaries process of anointing candidates is their jealously guarded preserve. Under the circumstances they may just find it expedient to bump up the VP to fill the presidential slot but how the VP slot will then be filled remains uncertain.

Tight race or landslide
How will this uncertainty play out in 2020? President Trump returned to the White House on 5 October and two days later was back in the Oval Office announcing that he had recovered fully. Doctors described the cocktail of drugs administered to the president as an experimental therapeutic.

Trump has refused to participate in any virtual TV debates with Biden, a decision announced by the bipartisan Commission on Presidential Debates after he tested positive. The first TV debate had been variously described as “chaotic”, “a shit show” and a “wrestling bout in a mud-pit”, none an edifying label.

More than once, Trump expressed scepticism about the integrity of postal balloting warning that the issue would have to be decided by the Supreme Court. When asked about a peaceful transition of power, he generated controversy with, “we are going to have to see what happens”. This is one reason that Trump is keen to push through the appointment of Judge Amy Coney Barrett to the Supreme Court to replace late Judge Ginsburg, widely seen as a moderate and a liberal voice.

Earlier, ratification of federal judicial appointments was approved not by a simple majority but a larger (filibuster proof) majority of 60. This invariably meant getting support from across party aisles. However, growing polarisation and politicisation of judicial appointments in recent decades often led to prolonged impasses and nominations had to be withdrawn. In 2013, then Democratic Senate majority leader Harry Reid worked out a deal to permit judicial appointments for Circuit and Appeal Courts to be cleared by simple majority of 51. It boomeranged when the Republican Senate leader Mitch McConnell employed the same ‘nuclear option’ to approve the appointment of Judge Neil Gorsuch to the Supreme Court in 2017 and is threatening to use it again.

Surveys and reality
In all four instances of single term presidencies, the challenger won a decisive victory and in three instances, a landslide victory. Most opinion polls indicate a lead (not landslide) for Democratic candidate Joe Biden but polls can be notoriously misleading; even in 2016, Hillary Clinton led in the polls even winning more popular votes but losing the electoral college.

It is also impossible to predict whether the pandemic will catalyse a cyclical shift seen in 1932 and 1980. Just as there are old time Republicans who wish they had another candidate instead of Trump, many staunch Democrats wonder whether Biden will be sufficiently committed to their progressive agenda. Which party is more fractured internally remains speculative.

Amid the growing uncertainty, only a decisive victory on 3 November will show that US democracy has developed immunity from COVID-19.

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