The Five Unresolved States: What Happens Now


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“Who you gonna believe — me, or your lying ‘laws’ and supposed ‘math’?”

Joe Biden leads Donald Trump in Electoral Votes by 253 to 214, after winning Wisconsin, Arizona, and Michigan.  (Some media outfits haven’t called Arizona; others — Fox and those who get their feed from it — have.  We think it’s clear that Biden will win.)  Nevada remains undecided, but trending blue, which with Arizona would give Biden 270 votes and a hair’s breadth victory — if he can keep it.  The other 60 electoral votes come from states — Alaska, Pennsylvania, North Carolina, and Georgia — that all lean slightly red, based on votes tallied so far, but each except Alaska awaits urban and allied suburban mail-in votes that could turn them blue as well.

They, along with where they presently stand at noon Wednesday, are:

  1. Nevada (6 EVs) — Biden leads by 0.6% with 86% counted and the rest of the votes coming from provisional ballots and late-arriving mail, which are Democratic.  They report on Thursday; Biden should easily win.
  2. Arizona (11) — Note: This afternoon it was called for Biden.  Note2: then, not — but still likely will be.
  3. Wisconsin — where Trump leads by 4 with 84% counted, but with a massive amount of votes from Milwaukee remaining to be counted.Note: It’s now been called for Biden!  Trump is demanding a recount despite the 0.6% margin.
  4. Michigan (16) — Note: It has now (a little before 5 p.m. PT Wednesday) been called for Biden!
  5. Pennsylvania (20) — Biden is up by 13% with 74% counted, but that remaining 26% is largely from Democratic counties.
  6. North Carolina (15) — Trump by 1.4%.
  7. Georgia (16) — Trump by 1.8, remaining votes are in Biden-friendly Atlanta suburbs.  But Biden would need almost 2/3
  8. ME-2 (northern Maine) is undecided has gone to Trump
  9. Alaska (3) — hasn’t been called, but clearly will go to Trump

[Note: Beware of electoral-vote.com, which has awarded PA to Trump and doesn’t seem to account for the single district races!]  270towin.com is not being so stupid.]

Let’s give Trump Alaska, which brings him from 213 to 216.

Let’s give Biden Nevada Arizona and Michigan, which brings him from 237 to 264.

Georgia (16), Nevada (6), and Pennsylvania (20) remain in play.

Biden is currently the favorite in each state, based on his current lead and where the uncounted votes come from.  Any one of them would give him the victory, though Nevada’s would get him only exactly to 270.



Now, let’s look back at election night itself — and what I wrote last night Trump’s “we’ve probably already won” speech.

Trump has done what seemed impossible, what only the most pessimistic scenarios suggested he might do.  It was also exactly what he had been hinting that he would do for weeks or more.

This involves:

  • claiming victory based on an incomplete count that largely does not include votes from urban centers and their like-minded suburbs, such as Atlanta, Charlotte, Detroit, Las Vegas, Milwaukee, and Philadelphia.  Votes pile up there awaiting counting more than in rural states — especially when state laws (and Trump knew or should have known) prevent the vetting and preparation of absentee ballots for counting.  This is what is done in Orange County; it allows for an extremely rapid count when early arriving ballots predominate
  • claiming that any further counting would be both futile and an invitation to fraud
  • seeking a Supreme Court injunction on further counting of ballots, on the grounds that the margin of victory cannot be overcome

… all of which he announced at a press conference tonight.

The problem is that states, under their laws, will not be able to certify their elections if the Supreme Court granted such a completely heinous injunction that converts us from democracy to de facto dictatorship.  (That’s not hyperbole.  The theoretical ability to vote leaders out of office, given a fair vote, is a big indicator of whether a country has crossed that bridge.)

What happens them?  One of two things:

First, it could be that the states just don’t send electors, the Presidential race goes to the House of Representatives for a “Contingent Election” where they vote by delegation, and Trump probably (we don’t know yet) wins there.  (Or, Pence — who it looks like will still have a majority in the Senate — double-crosses him and prevents him from reaching the necessary majority until Election Day, when he becomes President.  Yeah, I don’t think that Pence has it in him either.)

But hat scenario can be avoided if, instead — as Trump has reminded us regularly — the states go back to their rights under the Twelfth Amendment and pass laws allowing them to appoint Presidential Electors directly.

Any state could do so, but probably only those who hold all both houses of legislature and the Governorship would do so — though only if their preference differed from the decision of their voters.

While 36 states have trifectas, you’ll probably be happy to know which states now at play don’t: Minnesota, Wisconsin, Michigan, Pennsylvania, North Carolina, and  (had to look for it!) Alaska.  Five of those — all but Minnesota — are as yet uncalled.  The three other states that haven’t been called are Nevada, which is a blue trifecta and — uh-oh — Arizona and Georgia.  (I don’t know when new legislatures take office in these states, though I could find out, but first I’ll wait to see whether these elections flipped any seats.)

Republicans held control of the State Assembly by a 31-29 vote — and honestly I doubt that that will be enough if the party does in fact vote blue.  Republicans hold a 17-13 majority in the State Senate, so two Republicans would have to defect yp tie that vote.  (I don’t know if there’s an officer that breaks the tie.)

Republicans have a 105-74 advantage in the State Assembly, so they’d probably go along with things.  In the State Senate it’s 35-21.  (Remember when Georgia Secretary of State used his powers to bend election law to allow him to bear Stacey Abrams?  That travesty just became a tragedy, because he’s the one who would sign such a law into being.)

Now, there might be state constitutional provisions in either state that would prevent them from taking the electors away from the public.  That’s a whole different level of research.  But the problem there, of course, is who can sue to stop them from violating their own constitution — and who would hear the appeals?



The View from Wednesday Morning

OK, taking it from the top on Wednesday morning!

Trump has essentially attempted an auto-coup last night, shifting from elected President to “elected” dictator.  People will die due to what he did, as his hooligans waiting to graduate to death squad status believe that they are saving the Constitution by subverting it.  But that was just an attempt; let’s figure out whether it has a serious chance of success.

I cannot recommend the New York Times‘s graphics explaining the state of the race highly enough.  I think that it’s free right now; just go to newyorktimes.com and I’m sure you’ll be led right to it.  For now, the relevant links are here for a look at the states and here for where the uncounted votes are in each.

If you want to know how many votes remain to be counted in undecided states, where those votes are, and how (based on other votes in those areas) they are likely to break — they have it all set out for you.

If you want to know what different combinations of the seven remaining states lead to a Biden win, a Trump win, or a tie — they have an outstanding graphic for you.

And most gratifying personally is that they have finally caught up with what OJB has been telling you for most of a month:

“Because Mr. Biden won that lone Nebraska electoral vote, be could secure the Presidency by winning Arizona, Michigan, and Wisconsin, regardless of the result in Pennsylvania.”

Welcome to the party, folks!  Now you just have to realize that Nebraska could just change its law to retroactively eliminate its  apportionment of its votes by districts in this election.

That is why Maine needs a law ASAP saying that if Nebraska changes its NE-2 vote to red, Maine will change its red ME-2 vote to blue.  Get on that, please!



The View from Thursday Morning

So much has changed — and so little.  It’s now highly likely that Biden will win the election — absent any chicanery that it possible with a 270-268 margin but less possible as Biden’s lead increases towards its theoretical maximum of 306-232.  But while the actual counts strolls towards closure, none of them seem actually to get there yet.  North Carolina is likely to go for Trump; the others (except Alaska, which I’m ignoring) for Biden.  Now at 253 (for what seems like a week), Biden can tie with Georgia, get to barely 270 with Arizona and Nevada, and blow past 270, with or without the others, with Pennsylvania.

They seem to be going as fast as they can, but I get the sense that Pennsylvania is happy to be behind the curve, as first place may be getting to be the site of right-wing rioting.  Arizona and Nevada are probably better equipped for that.

Results are likely by tonight, very likely by Friday


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Deposed as Northern Vice Chair of DPOC in April 2014 (in violation of Roberts Rules) when his anti-corruption and pro-consumer work in Anaheim infuriated the Building Trades and Teamsters in spring 2014, who then worked with the lawless and power-mad DPOC Chair to eliminate his internal oversight. Expelled from DPOC in October 2018 (in violation of Roberts Rules) for having endorsed Spitzer over Rackauckas -- which needed to be done. None of his pre-putsch writings ever spoke for the Democratic Party at the local, county, state, national, or galactic level, nor do they now. One of his daughters co-owns a business offering campaign treasurer services to Democratic candidates and the odd independent. He is very proud of her. He doesn't directly profit from her work and it doesn't affect his coverage. (He does not always favor her clients, though she might hesitate to take one that he truly hated.) He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)