Last year I wrote that the Electoral College, an archaic and outmoded system that runs contrary to our democratic principles and intuitions, was the “greatest threat to our democracy.”
Somehow, this was an understatement.
As recently as Wednesday, President Donald Trump was pressing his aides on whether Republican legislatures in key states could overturn the results of the presidential election and pick pro-Trump electors, potentially giving him a second term. It’s not likely, but the fact that it is even theoretically possible is one of the most starkly undemocratic elements of the Electoral College. If it actually happened, in 2020 or the future, it would mark the end of American democracy as we know it.
If Americans chose their president by a national popular vote, the outcome would have been apparent from the time polls closed on the West Coast on Election Day. Late that night, Joe Biden held a strong head in ballots cast, and since then it has only grown. As of Friday morning, the president-elect led the national tally with 77.8 million votes to 72.5 million for Trump, for a spread of 5.3 million votes. With plenty of outstanding ballots left to count in Democratic strongholds like New York and California, the gap will continue to grow.
Of course, Americans don’t choose their president by national popular vote. They choose him (still him, for now) in 51 individual elections, nearly all of them winner-take-all, with special attention paid to those states competitive enough to make a difference in the fight for 270 electoral votes. No one designed this system — it bears little resemblance to the deliberative, temporary legislature empowered to pick a president described in the Constitution — but it’s what we have.
It is because the outcome depends on results in individual states — and because those results are much narrower than the national tally — that Trump can claim there is path to reversing the outcome of the election, however ridiculous that claim is. Allege enough fraud in Wisconsin, Pennsylvania and Georgia and you might convince Republican state legislators to take matters into their own hands, embracing the view, first articulated by Chief Justice William Rehnquist in Bush v. Gore and then echoed in a recent opinion by Justice Brett Kavanaugh, that state legislatures have sole and exclusive power to decide election law and procedures.
What could those lawmakers do? Under the Constitution, states can allocate electors — meaning electoral votes — in “such Manner as the Legislature thereof may direct.” Beginning after the Civil War, every state in the union has used direct popular election to choose electors. The modern process is straightforward. After the vote, election officials certify results and prepare “certificates of ascertainment” that establish credentials for each elector. There are multiple copies, and the governor signs each one. The electors meet, record their votes, and those votes, along with the certificates of ascertainment, are sent to state and federal officials, including the vice president, who will preside when Congress counts electoral votes early next year. If a state submits conflicting electoral votes, the House and Senate may choose which ones to accept or reject.
Under the theory of legislative supremacy over elections, however, Trump-friendly state legislatures could possibly circumvent governors and election officials to create different slates of electors to send to Congress, forcing a choice between the people’s electors and those of the legislature. It’s a move that would almost certainly force the Supreme Court to intervene, creating confusion and — more important — the sense that the outcome of the election is genuinely unsettled.
It has to be said that there is almost no chance of this happening. Pennsylvania Republicans have already ruled it out, and without the state’s electoral votes Trump has no reasonable path to a second term. Biden’s win was decisive, with hundreds of thousands of votes in five swing states separating him from Trump in the Electoral College. Republicans in Washington know this and have privately described their public statements (that the results are uncertain; that Biden is not yet president-elect) as one part performance art for a chief executive who cannot face reality, one part a strategy to gin up turnout for the upcoming pair of runoff elections in Georgia that will determine which party controls the Senate.
But the thing about performance art is that it’s only effective when everyone knows it is a performance. Is every Republican in Michigan or Wisconsin in on the joke? Are Republican voters nationwide? If not, how can anyone really say they know when and how this game will end?
The best odds are that come Jan. 20, Joe Biden will take the oath of office as the 46th president of the United States. Many Americans will want to breathe a sigh of relief. They shouldn’t.
We are living through a period in which, for reasons of geographic polarization in particular, the Republican Party holds a powerful advantage in the Senate and the Electoral College, and a smaller one in the House of Representatives. Twice in 20 years they’ve won the White House without a majority of votes. A few shifts here and there, and Trump might have won a second term while losing by a popular vote margin nearly twice as large as the one he lost by in 2016.
The Republican Party, in other words, can win unified control of Washington without winning a majority of the vote or appealing to most Americans. Aware of this advantage, Republicans have embraced it. They’ve pinned their political hopes on our counter-majoritarian institutions, elevated minority government into a positive good (rather than a regrettable flaw of our system) and attacked the very idea that we should aspire to equality in representation. “Democracy isn’t the objective; liberty, peace, and prosperity are,” Sen. Mike Lee of Utah tweeted last month. “We want the human condition to flourish. Rank democracy can thwart that.”
“Rank democracy.” Perhaps Lee, one of the leading intellectual lights of the Republican Party, is alone in his contempt for political equality between citizens. But I doubt it. And a Republican Party that holds that view is one that will do anything to win power, even if it breaks democracy. It’s a Republican Party that will suppress voters rather than persuade them, degrade an office rather than allow the opposition to wield it and create districts so slanted as to make it almost impossible for voters to remove them from office.
For that Republican Party, the Electoral College is a loaded gun, waiting to be fired. We’ll disarm and disassemble it as soon as possible, if we value this democracy of ours.