Saturday, December 17, 2016

The Election Results Process and Media Errors in Reporting Them, Especially for Presidential Elections

           As has increasingly been my practice over the years, I usually wait until election results have been certified, or at least are clearly beyond dispute, to analyze them.  I even sometimes wait for a concession by the losing candidate in foreign elections to report on those results.

In this post, I explain the election process, especially the unique one for President of the United States, and the reasons why I prefer to wait for the votes to be counted and any election disputes to be resolved.  Having been a candidate and having been involved in an election dispute, which I won, and having observed the outcome of elections be opposite what the media had originally reported, I explain also why the media is often misleading and even erroneous in its coverage of election results.

There are several reasons why it is prudent to wait for the certification of an election to report who is elected.  There can be various vote-tabulation errors or omissions.  Even without anyone contesting an election, the process of certifying election results takes over three weeks in Pennsylvania, for example, and even longer when there is a recount or contest.  Concessions by losing candidates, or at least who believe they have lost, are neither legally required nor determinative of the election outcome, as other voters may request recounts or contest the election.  The media should not assume that because it is unaware of any challenges to election results that they do not exist or ignore such challenges because it regards them as unlikely to succeed, as it should let the process transpire and report on it accordingly.

A major reason the media should not report election results immediately as certain is because of absentee and provisional ballots.  In Pennsylvania, for example, only the machine votes are announced by the county election offices on election night, after the Judges of Elections bring the cartridges from the voting machines from their precincts to their county courthouses, where they are loaded into the county’s computers and tabulated.  The Judges also bring in the paper absentee and provisional ballots, but the absentee ballots are not counted until a week after Election Day, while the Board of Elections considers the provisional ballots, which also takes several days.  Across the American Union, military absentee ballots also may arrive postmarked by Election Day for several days afterward.  Therefore, it is erroneous for the media to report election results as “complete” once all precincts in an election district have turned in their results, as these are only the machine votes, not the paper votes in those jurisdictions that do not count them simultaneously, such as where all votes are cast by mail.  The media should report these results as “complete” only for machine votes and then report the certified election results. 

In addition to the tabulation of these paper ballots I also note the machine results in Pennsylvania, for example, only show a total number of write-in votes, but not any tabulation of those votes.  There is also a process for a candidate to accumulate any write-in votes that are of similar spelling to his name.  Write-in votes are typically not tabulated election night in other States, either.  Even though candidates are often nominated in primary elections or elected in the general election by write-in votes, the media often ignores even the possibility, which is part of its misleading practice of referring to candidates as “unopposed” if there are no other candidates on the ballot for that office, or to the office as “uncontested.”  As long as voters may write in votes, as all elections were in the early years of the Republic, there is no such thing as an “unopposed” candidate or “uncontested” office. 

Because of errors and omissions, and the tabulations of paper ballots and write-ins, the media should refrain from “calling” elections and commentators should refrain from referring to elections as “called,” as if there is some legal authority to these media declarations.  The only legal calling of an election is the certification of the election results by election offices.  Even then, there are legal provisions to challenge those results.  Election results have been overturned through the use of these provisions.  Similarly, the media should refrain from referring to someone as “Elect,” such as “Governor-Elect” or “School Director-Elect” until the person is legally elected.  Premature media declarations of election results actually effect the election process by discouraging election challenges because they make the election of the candidate the media has called the “winner” seem legitimate and any challenge the result of being a “sore loser.” 

Note also that a candidate for nomination or election may be nominated or elected and even be sworn into office, but later be discovered to be ineligible and the election effectively overturned, despite the “will of the people” and a special election held to fill the vacancy on the ballot or in the office. 

For federal offices, there are additional steps in the election certification process.  The Constitution grants the power of the United States House of Representatives and Senate each to determine the election results for seats in their respective chambers.  

The House and Senate also certify the election results for President and Vice President, respectively.  The particular difference for these offices is how they are elected, which is by the Electoral College, not popularly.  Even though the Electors are elected by ballots cast in the name of their party’s presidential nominee, the election of the Electors is not the presidential election.  Therefore, there is no such thing as a “President-Elect,” at least until the Electoral College conducts the presidential election, and, for the same reasons as for other offices, not even until the Congress certifies the result.  In fact, constitutionally, there are not even any presidential candidates until the Electors cast their ballots.  As the Electoral College was intended by the Framers of the Constitution as a representative body, the media also errs by referring to those Electors who exercise their best judgment in good conscience as “faithless” or “rogue” because they vote for some other member of their political party than the one their parties expect.  Because the presidential election is not a popular exercise, but an example of how the Framers established a representative republic instead of a democracy, Electors cannot “overturn” the presidential election, as their voting is the presidential election, as the media erroneous reports.  

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