After struggling with the economic and health impacts of COVID-19, is your business prepared to handle yet another black swan--the risk of post-election disruption in November and December?
For those of you who are dead tired of everything being politicized, this is not an article about Donald Trump refusing the leave the White House if he loses or the Postmaster General conspiring not to deliver absentee ballots in the mail. It is an article about a business risk that you need to assess.
The risk relates to the possibility of election-related violence following the 2020 presidential election, regardless of who wins or loses. Why is 2020 a matter of special concern? Four reasons:
First, the COVID crisis and partisan efforts to maximize voter turnout are driving efforts to use vote-by-mail or absentee ballot procedures on a national scale never seen before. If you strip away all the competing political claims about this, the reality is no one knows how this huge increase in mailed-in ballots will play out. The concerns surround how and when mailed ballots will be counted and disputed, both administratively and in the courts. Voter fraud may or not be relevant, but it’s not the principal issue for this discussion.
Second, both political parties are lawyering up, anticipating and planning lawsuits across every state where political advantage might be achieved by disputing some aspect of the electoral process. Lawsuits heap additional time on top of the effort required to count and validate or invalidate ballots cast by mail or in person. Lawsuits also bring the courts into a highly political arena, potentially creating further questions about the proper role and objectivity of our judicial system. The Supreme Court will almost certainly be involved, raising interesting questions about the alleged “conservative majority” and the Chief Justice’s record of crossing over with the more liberal justices to try to preserve the integrity of the court.
Third, this is an especially bitter presidential election. Emotions are high on both sides and heightened by the cumulative burdens from COVID (both its lockdowns and its health impacts) and a summer of violent protests and differing concepts of law and order. Whatever happens in the election, a substantial portion of the American people (and perhaps the media) will be indignant about the outcome. Some people think this factor alone could bring millions of sore losers to the streets, regardless of who wins. Let’s hope Belarus is not our role model.
Fourth, and I will try to be politically correct here, we are in a time where historical standards of acceptable and unacceptable conduct are being challenged both by peaceful protesters and opportunistic activists. Less politely, Americans are more ready to take to the streets and opportunists will be glad to incite and take advantage of that action.
One of the intriguing risk vectors revolves around what happens if various states are unable to certify their electors to the Electoral College by the dates required in the Constitution. Stay with me. The details here are important and I will stick to the highlights.
The U.S. Constitution establishes the process for the Electoral College vote that formally elects the President and the Vice President. The Constitution also requires that the electors in each state must meet on the same day. But a federal law provides when this process must take place: The electors of President and Vice President must be appointed, in each state, on “the Tuesday next after the first Monday in November” and those electors must meet and deliver their votes on “the first Monday after the second Wednesday in December next following their appointment.”
So, this year, the electors who are elected in the November 3 presidential election must formally vote on December 14 to select the new President and Vice President. Pursuant to the 20th Amendment to the Constitution, Inauguration Day will occur on January 20.
Another federal statute says that any controversy over the electors a state has appointed must be resolved, under pre-existing state law, at least six days before the Electoral College meets. This year, that date is December 8. All state recounts and court contests over presidential election results must be completed by this date. If any such dispute is not resolved by the December 8 “safe harbor,” the state will forfeit its electoral votes unless the state legislature decides by December 14 how the electors are to be selected. (Yes, you might ask how control of the state legislature might affect that vote.)
As Washington attorneys David B. Rivkin Jr. and Lee A. Casey write in a recent Op/Ed in The Wall Street Journal, “At best, the result would be electors chosen by state legislatures. At worst, states would be disfranchised in the Electoral College—or send rival slates of electors to vote on Dec. 14, leading to a bitter dispute in Congress over which votes to recognize.” Congress has various ways of objecting to the electors from any state. (If you are a glutton for punishment, read this wonderfully arcane review of the legislative history of the Electoral Count Act of 1887.)
These requirements coalesce to create a five- or six-week period during which the state electors must be chosen and certified. Unless we are extremely fortunate to have a clear electoral mandate coming out of November 3, this time period may make the impeachment process look like a cake walk.
Many political commentators predict we will not know the outcome of the presidential election on the night of the election or even the day after. If that’s all we need to deal with, we’ll get through it. But if the “hanging chad” vote counting debacle Florida brought to the 2000 presidential election is repeated on steroids across the United States, tensions will build to a point where the slightest allegation, tweet or event may bring mobs to the street. And if questions about the validity of individual state results push state elector certifications into the state legislatures or into Congress, things will not go well. COVID and BLM will seem like minor distractions.
Beyond the incalculable damage to American democracy, a contested election—especially one marred by street protests and violence—would add to the social and economic disruption wrought by COVID-10, potentially adding one more nail into the coffins of suffering small businesses at the height of the holiday shopping period. Major U.S. companies are already looking at how to manage this risk.
If you have updated your Business Continuity Plan for the effects of COVID-19, you will have already made some of the adjustments you need to consider for a potential contested election, such as bolstering your online commerce capabilities to serve customers who may prefer to stay home and extending your work-at-home options to provide better safety for your employees. Depending on where your offices are located, you may also need to devote further attention to the security of your physical locations, including the servers and other gear that handle your customers and your staff. And you may need to update your revenue and cash flow forecasts to add further contingencies.
Whatever else you do, pay attention to the physical and emotional well-being of your employees. 2020 is proving to be a debilitating year for so many businesses and individuals. As tense as we have all become about politics, a political black swan would cast a long shadow across the holidays and the future. Sending a message that you care, and that you respect every employee’s right to his or her own opinion, can go a long way, both for your company and for our country. Think about your company policies on mutual respect, political speech and protests, both for fairness and for clarity. Encourage employees to share their concerns and needs. Consider additional flextime or time off if that is feasible. Particularly with the challenges of remote work, stay in touch.
Practice togetherness. Be respectful about social, racial and ethnic differences, but be cautious about identity politics. Send the message that we’re in this together and we’ll get through it together. If your side is on top, be a gracious winner. If your side is on the outs, be a gracious loser. One way or another we need to remember E. Pluribus Unum. Out of many, one.
Business Continuity Plans are all about assessing and preparing for possible risks. For years, political disruption in the U.S. has not been on the list. We can and should hope it does not become relevant now. But we cannot ignore the risk.
Note: This article by the author also appeared on LinkedIn at: https://www.linkedin.com/pulse/your-business-prepared-disruption-after-presidential-election-harris/
Comments