To ascertain or not to ascertain

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Ascertain: To come to an awareness of [Merriam-Webster dictionary]

The General Services Administration (GSA) has yet to ascertain Joe Biden as “the apparent successful candidate” of the presidential election. This ascertainment is necessary for Biden’s team to have what it needs (funding, briefings, access, and more) for an effective transition of power.

Delaying the transition poses serious risks for the country, in particular in the areas of national security and the response to the COVID-19 crisis. I have thus added my citizen voice to the calls for the GSA Administrator to act. She should. But does she have to?

The applicable law (the Presidential Transition Act of 1963, and amendments) gives the GSA Administrator significant leeway. Quoting (my highlight): “The terms ‘President-elect’ and ‘Vice-President-elect’ as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2.”

There is no further guidance on who constitutes an ‘apparent successful candidate.’ But the legal expectation and the historical precedent are that the determination be made promptly, the day after the election. GSA’s own graphical overview of the process says that—in case of a change of Administration—the GSA will offer support to the President-elect and Vice-President-elect on November 4, 2020. On the same date, it further states, “Agency Review Teams [from the Administration-elect] begin arriving at agencies and the selection of incoming presidential appointees begins.”

On November 4, with no clear winner, the GSA Administrator was correct in not ascertaining an apparent winner. But we are now on November 16, and there is preponderance of evidence that Mr. Biden won. That evidence is expressed in vote tallies, officially reported by counties and states. Formal certification always takes longer, but, as the legal language and historical precedent indicate, certification is not a requirement for an “apparent successful candidate” to be declared. Adding to the tally evidence, all credible news media—including Fox News—have long ago projected Mr. Biden to win.

Still, the incumbent president has not conceded defeat, and continues to pursue low-odds legal challenges. Are his non-concession and legal challenges enough for the GSA to refuse ascertaining Mr. Biden?

The GSA thinks so, with a rationale expressed defensively in GSA’s Role in Presidential Transitions (my highlight): “The General Services Administration (GSA) Administrator does not pick the winner in the Presidential election. In accordance with the Presidential Transition Act of 1963 (PTA), as amended, and consistent with precedent established by the Clinton Administration in 2000, the GSA Administrator ascertains the apparent successful candidate once a winner is clear based on the process laid out in the Constitution.“

In 2000, it took Al Gore until December 13 to concede to George Bush. But using that election as precedent is misleading and dangerous. Mr. Gore’s concession came shortly after a Supreme Court decision that settled a recount dispute in a single state. The legal challenge was not frivolous: At stake was a margin of 537 out of nearly 6 million votes casted, and the Florida outcome would determine the winner of the nationwide election. There was legitimate uncertainty on who the winner would ultimately be.

There is no meaningful comparison between 2000 and 2020. Mr. Biden’s margins of victory are large (306 versus 232 Electoral College electors). There is no credible evidence of electoral corruption or fraud, with the elections having been declared fair and secure by national officials and international observers. No legal challenge is expected to reverse the winner in any state, much less in enough states to tilt the national election. There is an automatic recount in Georgia, but Mr. Biden leads the original count by over 14 thousand votes, in a state where only 16 electors are at stake. There is truly no reasonable, democratic path to victory for the incumbent.

Furthermore, 2000 contains relevant lessons that the GSA is ignoring. In particular, we learned how delaying a presidential transition can be dangerous. The 9/11 Commission specifically pointed to the delay as one of the factors for the US Intelligence community to be caught unawares by the 2001 devastating terrorist attack. Since 2000, there have been no delays in declaring the President-elect, even when (in 2016) the electoral outcome was generally viewed as highly surprising. With a complex global context, and a raging public health crisis, this election is no time for dangerous, frivolous delays.

The GSA is right in stating that the agency does not pick the winner of the election. Voters do, via the Electoral College votes presented to and counted by Congress. But the GSA is fundamentally wrong in stating (my highlight) that it “has met all statutory requirements under the [Presidential Transition Act] for this election cycle and will continue to do so.” There are clear “apparent successful candidates.” They are Joe Biden and Kamala Harris, for President and Vice President, respectively. The GSA should so state, as it is its responsibility.

Not issuing the transition declaration expeditiously is too dangerous. Certainly for national security reasons and for the control of COVID-19. But also because it would establish the unacceptable precedent of a sore loser being able, merely by not conceding, to put America and Americans at grave risk.

— Antonio Baptista


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