America finds itself in a precarious moment in the electoral process. We saw it coming many months in advance, but that does not make things easier. While the current president lobs lawsuits in courts to overturn an election he lost but refuses to concede, the incoming president has been blocked from proceeding with the transition process and the rest of the country has been left in the lurch to watch while the aching bureaucracies of courts, election officials, and various relatively obscure governmental agencies attempt to find their footing amid delays, appeals, recounts, and other time-sucking maneuvers. Americans just want this election to be over, but like the miles-long lines outside polling stations this past election season, the darn thing never seems to end. The frustration on both sides is enough to make one contemplate libertarianism, or even anarchy.
No one feels the burden of these ministerial ebbs and flows as acutely right now as one administrator in the offices of the General Services Administration (GSA), Emily Murphy. Murphy has the unfortunate task of serving as the one government official who must certify the election results for the transition to the Biden administration to officially begin. At the heart of her decision is a fairly nebulous concept called “ascertainment.” According to the Presidential Transition Act of 1963 (PTA), which sets out the rules and guidelines for transitioning from one administration to another, the section that covers how the transition process begins states the following: “For the purposes of the PTA, the President-elect and Vice-President-elect are defined as ‘the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the [GSA] Administrator following the general elections.’”
However, what exactly “ascertainment” means remains entirely undefined within the law and generally unclear to legal observers. It is at its core an epistemic concept, and it provokes an epistemic question: how does one “know” with certainty who the winner of an election is? Usually, administrators in Murphy’s role have certified elections fairly quickly after major news networks call the winner on Election Day or soon afterward. For instance, in 2016, major news networks declared Trump the winner on election night even though he trailed Clinton by 3 million votes because he had clearly won enough swing states to cross the 270 mark in the Electoral College. Clinton conceded, and Murphy’s predecessor ascertained the results the following day. The process has not always gone as smoothly, however. Unfortunately, the PTA does not give much guidance regarding how the ascertainment should be made. Instead, it simply describes the unique situation in 2000 when one of Murphy’s predecessors, David Barram, could not ascertain the winner in the immediate days following the 2000 election. As the PTA describes: “In the immediate aftermath of the contested November 7, 2000, presidential election, neither major candidate (George W. Bush or Al Gore) was provided with the resources that would be available for the President-elect and Vice President-elect. In testimony before the House Committee on Government Reform, Subcommittee on Government Management, Information, and Technology, Administrator David J. Barram testified, ‘In this unprecedented, incredibly close and intensely contested election, with legal action being pursued by both sides, it is not apparent to me who the winner is. That is why I have not ascertained a President-elect.’ In his testimony, the Administrator drew on a 1963 House floor debate concerning the PTA, during which a sponsor of the legislation stated that, ‘in a close contest, the Administrator simply would not make the decision.’ The GSA Deputy Administrator reportedly provided PTA facilities and funds to the Bush-Cheney transition team on December 14, 2000, the day following Vice President Gore’s concession speech.”
The way the law is written leaves much room for speculation. Presumably, the reason Barram decided to wait to ascertain the winner following the 2000 election was that the recount in Florida was ongoing and Gore had not conceded. From this precedent, there are two possible deciding factors that Murphy could be looking at. On the one hand, she may be waiting for either Trump or Biden to concede before she ascertains the winner. This would be problematic for the simple reason that Trump has all but promised never to concede, so if that is the condition for ascertainment, Murphy may be left waiting forever. On the other hand, she may simply be waiting for Trump’s legal machinations to run their course as he attempts to force recounts in several states. Already his cases in Michigan, Wisconsin, and Pennsylvania have failed, however, meaning that he has no clear path to overturning the election results. All that remains is Georgia, where a recount would not even garner enough votes for Trump to win.
Therefore, amid this ambiguity and for reasons that are not entirely clear, Murphy has decided to delay ascertaining a winner and certifying the election results. The Democrats are, of course, furious. In a letter to Murphy from The Committee on Oversight and Reform, House Democrats have laid out their grievances and have demanded that Murphy appear before the House to explain her decision. In the letter, the committee states several facts that are probably irrelevant to Murphy’s considerations, namely the fact that Biden received the most votes of any presidential candidate in history, which does not matter because that does not necessarily mean he won, and the fact that “by November 7, 2020, virtually every major news organization had declared President-elect Biden and Vice President-elect Harris as the clear winners,” which is also irrelevant if Murphy’s epistemic theory of ascertainment rests on either a concession from one of the candidates or the conclusion of court cases related to the election. About these last two factors, the committee wrote: “Unlike the dispute after the 2000 election in Bush v. Gore, there is no legitimate path forward for President Trump—regardless of how many baseless lawsuits he files or his irrelevant refusal to concede. He has now lost dozens of cases in multiple states as many of his own attorneys abandon his efforts.”
But of course, the Committee’s assertion that “there is no legitimate path forward for President Trump” raises the question of ascertainment again: on what basis can Murphy decide that the committee is correct? Trump’s refusal to concede may indeed be irrelevant politically, but legally it is still relevant given that it represents one way in which the election process could be concluded with certainty. But without a concession, the fact that some court cases are still ongoing, such as those in Georgia, means that it would be inappropriate for Murphy to decide to ascertain the winner since doing so would, in effect, pre-empt the courts who are hearing the court cases. The Democrats’ reasoning is compelling, given that even if Trump were successful in the ongoing court cases, he would not win enough electoral college votes to win the election. But the Democrats’ reasoning does not include the outside possibility that Trump could launch more lawsuits that could be successful, and the Democrats certainly did not address the possibility that Trump could find some way to pressure his Republican colleagues into overturning the election results in their own states. These are of course unlikely outcomes, but as a government administrator, is it really Emily Murphy’s place to decide in advance whether these possibilities should play out or not?
Reportedly, Murphy has not taken to the glare of the national spotlight very well. She has received death threats, ridicule from many of the nation’s elite, and online mobs have given her the fully cyberbullying treatment complete with offensive remarks about her weight and gender and full-blown conspiracies about her alleged ties to the Trump administration emanating from the highest levels of liberal society. This phenomenon was notably epitomized in the actions of former Director of U.S. Office of Government Ethics and infamous Trump critic Walter Shaub, who tweeted a cartoon by The Washington Post’s Ann Telnaes depicting Trump with his hand up Murphy’s skirt as if she is his puppet. So far there is no evidence to support the claim that Murphy is acting at Trump’s behest. On the contrary, Murphy, a graduate of Smith College, has been described by her colleagues as a consummate professional. As one of her former colleagues told CNN, “She absolutely feels like she's in a hard place. She's afraid on multiple levels. It's a terrible situation. Emily is a consummate professional, a deeply moral person, but also a very scrupulous attorney who is in a very difficult position with an unclear law and precedence that is behind her stance. She's doing what she believes is her honest duty as someone who has sworn true allegiance to the Constitution of the United States of America, and the laws that govern her position.”
Her apparently good faith efforts to follow the law have not stopped Democrats from criticizing her, however. Some of the criticisms the public has levied against her are partially apt. For instance, while the most conspiratorial corners of the democratic base claim that her indecision is evidence of corruption and even treason, the less conspiratorial critics who say she is leading a power grab are not entirely wrong. Counterintuitively, Murphy’s breakdown and inability to act under pressure amounts to the elevation of Murphy’s position from a relatively obscure bureaucratic position to one of immense power and influence. In effect, because she must implement a theory of ascertainment, she has the power to decide what the epistemic value of the election result is. But of course, her level of political cache as an obscure bureaucrat does not match her apparent powers, which is why the Democrats are annoyed with her. At the very least, conspiracies and claims of power-grabbing aside, we can conclude that by creating a bottleneck, Murphy has unveiled yet one more point of failure in an electoral system that badly needs to be reformed.
At the end of the day, with lawsuits ongoing, a recount possible in at least one state (Georgia), and no concession from either candidate, it is prudent for Murphy to let the process unfold further and hold off on pre-empting courts or election officials by ‘ascertaining’ a winner prematurely. She is just a bureaucrat trying to do her job, and if anyone is to blame for this mess, it is Congress, who created a law that is too vague to be properly implemented. In trying to decide what the law says and how to enact it, Murphy has decided, for now, to fall back on the precedent set by her predecessor, David Barram. As justification for his actions following his inability to ascertain a winner in the midst of the 2000 election mess, Barram referenced the 1963 House floor debate in which a legislator stated that “in a close contest, the Administrator simply would not make the decision.” And so Murphy too has decided to simply not make a decision. Her decision means that Biden’s transition team cannot proceed and that Biden’s plan to address the coronavirus pandemic cannot be implemented. As a result, her decision may mean that people will lose their lives. But, given the laws and the current ambiguity of the status of the election results with no concession and litigation ongoing, her hands are tied. Unfortunately, Murphy’s decision to wait is prudent, and we will have to live with the consequences.