UNC politics and law experts talk U.S. election and aftermath

As the state and the nation continued to wait for final results in the 2020 election Thursday, a group of experts in U.S. politics and law from UNC-Chapel Hill held a second public discussion of the election and its aftermath.

Hosted by UNC law professor Eric Muller, the virtual roundtable included law professors Bill MarshallAndy Hessick, Mike Gerhardt and Political Science professor Jason Roberts.

UNC Politics and Law experts discussing the election and its aftermath Thursday night.

As former Vice President Joe Biden closed in on the 270 electoral votes needed to claim the presidency, the group took questions and gave their assessment of the presidential contest and down-ticket races.

The professors were frank and unanimous in their impression of the presidential race.

“A Biden victory is inevitable,” Roberts said.

“Of the uncalled states, the only one [President Donald Trump] could win is North Carolina,” he said.

The fact that major television networks haven’t called North Carolina already is a source of frustration for Republicans in the state, including N.C. House Speaker Tim Moore. On Friday Moore fired off a letter to Rep. Destin Hall (R-Caldwell), the chair of the Joint Legislative Elections Oversight Committee, urging him to apply pressure to the state board of elections to count and certify ballots more quickly.

“It is clear that the State Board of Elections is falling behind nearly every other state in the speed and transparency of its election counting,” Moore wrote.

“You are authorized, as House Chair of the Joint Legislative Elections Oversight Committee, to utilize all available tools, including your constitutional and statutory subpoena power to compel the Board to do its job as soon as possible,” he wrote. “President Trump and Senator Tillis have won this state, and the Board should release the information necessary for even the mainstream media to finalize those calls.”

Democracy North Carolina Executive Director Tomas Lopez called on lawmakers to let election officials do their jobs.

“A healthy democracy is one in which every eligible voter has their voice heard and their vote counted. That means we count all eligible votes and certify elections as provided by law, not the perceived expediency of any given moment. Voters did their jobs in this election, from now until the Day of Canvass — when North Carolina always certifies its elections — we should all let election officials do theirs.”

In the UNC roundtable, Gerhardt said it’s important that the public realize — despite the assertions of many GOP officials, including the president — that it is not unusual for the American public not to know the outcome of an election the day the polls closed. Making sure ballots are counted — whether from early voting, election-day voting or mail-in absentee voting — is the norm and not an aberration or cause for alarm, he said.

The fact that not every state’s system is as fast or efficient as some might like is “”a testimony to poor funding…but also testimony to people working very hard to try to count those votes,” he said.

The experts agreed that there does not seem to be a substantive legal argument to be made for fraud in the election based on statements made by the president or his allies so far. The group entertained questions about the idea the president may try to “run out the clock” by tying up the certification of the election until December and then declaring that state legislatures have to appoint electors because the elections process didn’t work properly. But most agreed that is an unlikely scenario.

The president seems to believe that if he can get a case before the U.S. Supreme Court, with a conservative majority he helped appoint, they will vote in his favor out of sheer partisanship. But the reality is likely to be quite different, if any such argument could get that far, he said. The court would, especially this early in its majority, be unlikely to invite the taint of partisanship that comes with deciding a contentious presidential election even if Trump’s legal argument were clearer, they said.

The Biden campaign was very canny on election night in getting out ahead of claims of victory to say that every vote must be counted, Marshall said, and that only the American people can elect a president.

“It’s quite obvious that the Democrats learned from Bush v. Gore,” he said.

In the 2000 presidential contest former President George W. Bush claimed victory early, making it look as though Democrats were trying to claw back his victory as they contested it and fought in court. By not declaring victory but calling on all the ballots to be counted, Marshall said, Biden was able to put Trump and his team on the defensive. Now, he said, as they offer dubious and quickly dismissed legal challenges and argue to stop counting legally cast ballots in some areas and to keep counting in others, it is the Republicans and the Trump campaign that appears to be trying to undo an election loss.

That doesn’t just impact public opinion, Marshall said, but permeates the entire climate in which this election will be discussed and perhaps litigated

“What Biden did on Tuesday night was incredibly important,” Marshall said. “To get out there when he did to say, ‘Nobody has won yet’ was effectively to take away that move from the Trump campaign, in case they were going to do that.”

Biden took leads in both Georgia and Pennsylvania Friday and looks likely to prevail in both states. That’s important, Marshall said.

“The problem with having to knock down two or three states in the courts, invalidate two or three states, is exponentially greater than just going after one,” he said. “Georgia and Pennsylvania set up an important wall to legal challenges.”

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