Revolt Against Democracy

The breadth and intensity of the President and his followers’ revolt against the incontestable results of the presidential election represent an extraordinary threat to the American democracy.  The most recent and perhaps most brazen action was the Texas Attorney General’s suit asking the Supreme Court — without providing any evidence of wrong-doing — to overturn the results of the November election.  Twenty-seven other states’ Republican attorneys general and 127 Republican members of the House of Representatives signed on to an amicus brief in support.  This is despite the failure of over fifty legal challenges since the election that have claimed fraud or other reason for rejecting its legitimacy.  The Supreme Court summarily dismissed this one, too.  

This is not a case, as his congressional supporters claim, of assuring that the President is afforded all his constitutional legal rights.  This is a case, rather, of siding with Trump and his supporters’ baseless claims as they subvert the democratic process.  Just three days before the Electoral College met, only 27 congressional Republicans accepted Biden’s win a month earlier.  

The Electoral College has now certified the results of the presidential election.  Senate Majority Leader Mitch McConnell has acknowledged Joe Biden as President-Elect, but anyone who believes that Donald Trump will change his behavior as a result of these events hasn’t been paying attention to the President since November 3 or, actually, long before.  He won’t change that behavior after Joe Biden is sworn in as President on January 20, either.  What will be “interesting” (as an approaching tsunami might be called “interesting”) is how many of his congressional followers will continue to support his claim to the presidency.  At this point, 48 hours after the Electoral College vote, most Republicans in Congress have yet to acknowledge Biden’s victory

What is going on?  I cannot believe that even President Trump now actually thinks he will change the results of the election.  But he does apparently actually believe that the election was stolen from him.  And he appears to be positioning himself to remain the leader of the Republican Party.  Six weeks after the election, according to a Fox News poll, 77% of Trump voters and 68% of all Republicans believe that Trump was robbed of the election.  The President is well positioned to lead a movement that will continue to challenge the legitimacy of the election, the Biden presidency, and the American democratic process.

It’s a time of enormous uncertainty.  What power will citizen Donald Trump have after January 20?  Will the Republican Party continue to follow President Trump down this rabbit hole of rebellion?  If enough people distrust the legitimacy of the election, will that become the rallying cry for nationalists for years?

In the more immediate future, how will our democracy function if over a third of the country refuses to believe that Joe Biden has a legitimate claim to the presidency?  

The President-Elect seems to recognize the danger and is, it seems, making every effort to reach out to the Republicans in Congress and speak to those Americans who distrust him.  Restoring that trust may be the most important task of his presidency. 

The Electoral College Is Anti-Democratic … and Intended to Be So

On December 14, the Electoral College will choose the next president of the United States.  This rather esoteric body has in the last years risen in our consciousness but is often vague in our minds.  I’ve written about the Electoral College before (here and here, for instance), but now might be an appropriate time to review its origin, original purpose, how it works today, and its impact.

Just to be clear from the start, although there have been examples in history of "faithless electors" (who vote against the candidate they’ve been appointed to represent), there have never been enough to change election results.  Indeed, historically, faithless electors usually vote for a third-party candidate rather than the other party.  Furthermore, thirty-two states and the District of Columbia now have laws to prevent faithless electors.  Despite President Trump’s best efforts, the Electoral College will function as it is supposed to on next Monday.  President-elect Biden will be the next president of the United States.

The Electoral College is a decidedly antidemocratic institution … as it was intended to be.  The Founders were afraid that majority rule would give the non-elite (95% of the population) too much control over the government, which could then expropriate wealth from the rich (the 5% of the population who were white, male, property holders and redistribute it more equally.  Given the gross economic inequality of the time, it was not an unreasonable fear.    

In writing the Constitution, therefore, the Founders created institutions that were intentionally antidemocratic.  I’ve reviewed this briefly here.  Of the three branches of government, only half of the legislative branch (the House of Representatives) was actually elected by the people.  The other half, Senators, were appointed by state legislatures (ie the elite); the president was chosen by the Electoral College, to which electors were appointed by the state legislators (ie, the elite).  The Supreme Court judges were appointed by the president.  

How are the appointees to the Electoral College chosen?  Each state is allotted the number of electors equal in number to their representation in Congress, that is, its number of Representatives in the House, plus its number of Senators.  Each state may then decide for itself how it will choose the Electors, although they can’t be a House Representative or Senator.  Originally, those who were doing the choosing, of course, were members of the states’ legislatures (that is, the elite, again).  Historically, states have used many different methods, but today all but two states appoint all of their Electors on a “winner take all” basis from slates chosen by the presidential candidate with the most votes.  Two states—Maine and Nebraska—award the Electors by Congressional District and give their remaining two electoral votes to the statewide winner.  Importantly, the state legislatures could constitutionally choose anyone they wanted to.  (This is why Trump has gone to several states to have them change their electors, which they could according to the Constitution.)

In one sense, the Electoral College is democratic: the state legislatures choose the slate of electors selected by the winner of the popular vote in that state.  In two other senses, however, it is antidemocratic:

• Each state receives one electoral vote for each of its delegates to the House of Representatives (each delegate across the country thus represents approximately the same population).  But each state also gets an Electoral College member fort each senator, (two per state regardless of population size).  This means that voters of less populated states have much more power per voter than residents of more populated states.  For instance, California has 53 Representatives and two Senators for 55 electoral votes, one for every 400,000 voters; Wyoming has one member of the House and two Senators for three electoral votes, one for every 90,000 voters.  That gives each Wyoming voter over four times the power of the California voter in electing the president … nothing close to “one person one vote.”  In today’s political environment, small states tend to vote Republican and large states Democratic.  This is a significant part of the reason why Democrats can win the national popular vote yet still lose presidential elections.  Of the three presidents chosen in elections between 2000 and 2016, Democrats won the popular vote in all but Bush’s second term but only Obama became president.
• Technically, state legislators make the final decisions.  According to the US Constitution, they can choose whomever they want regardless of who wins the presidential election in their state.  They don’t, but they could!  This year, President Trump tried unsuccessfully to convince state political leaders in Michigan, Pennsylvania, and Georgia to award their electoral votes to him despite Biden’s unequivocal victories in each state.
• The electoral college is also antidemocratic because almost all states choose their Electors in a “winner-take-all” fashion.  So, one party can win an election by just a few votes and yet win the entire slate of electors.  Since most states are either reliably Republican or reliably Democratic, a small number of “battleground states” decide the winner of the presidential election.  If the election is close in any of those states, just a few votes can determine the electors.  In 2000, a switch of less than five hundred voters from Republican to Democrat would have given the election to Gore.   In 2016 Hillary Clinton defeated Donald Trump in the national election by three million votes but lost in the electoral college; if (out of 137,000,000 voters nationwide) a total of 80,000 people in the states of Michigan, Wisconsin and Pennsylvania had changed their votes that year, Clinton would have won the election.  This year if 44,000 of Trump voters had gone to Trump, the Electoral College would have been tied.  (One practical result of this is that the people in the non-battleground states are effectively disenfranchised.  Candidates are essentially guaranteed victory in those states, so they don’t need to campaign in or bend their platforms in response to the opinions of people in the non-battleground states.)

As anti-democratic as the Electoral College is, it would take a constitutional amendment to change it, and, of course, the smaller states (with a high Senator-to-House-Representative ratio) have little incentive to change the process.  There is another possibility, however.  

Former US Attorney General Eric Holder and the National Popular Vote Interstate Compact are pursuing an agreement among states to bypass the Electoral College.  In this compact, individual state legislatures would award all of their electors to the winner of the national popular election.  Once the number of electors under the control of compact states reaches 270, the agreement will go into effect making the winner of the national popular election the winner of the Electoral College.  At present, states controlling 181 electoral votes have signed the compact, leaving only 89 votes to put it into effect.

Opponents of this project have maintained that it would give one party an advantage over the other but statistical studies have disputed this:

there’s almost no correlation between which party has the Electoral College advantage in one election and which has it four years later. It can bounce back and forth based on relatively subtle changes in the electorate.

For instance, John Kerry lost the popular election in 2004 by three million votes (about the same as Clinton over Trump) but came close to winning the electoral vote 251-286 .

The Electoral College is an archaic, antidemocratic institution that distorts American politics.  It does not consistently reward one party or the other.  It deserves to be eliminated or at least by-passed.