At last count, president-elect Joe Biden was ahead by more than 5 million in the popular vote. Yet Donald Trump is still claiming he actually won “by a lot”, and only four of the 48 Republican senators have come out and acknowledged Biden’s victory.
Most attention is focused on two contingencies in these uncharted seas: Trump’s many legal challenges to the election which are being filed in and thrown out by the courts daily; and the “what to do?” prospect of his simply refusing to shift his arse out from behind the Resolute Desk on January 20, 2021.
Will the Secret Service have to deploy a forklift? Also, what if Trump, the commander-in-chief of the armed forces until that date, declares martial law?
There is, however, another wrinkle, to which I suspect the Republican hierarchy is applying rather more attention than the question of whether they’ll personally man a machine gun on the White House lawn.
As you’ll know if you’ve been concentrating at all, the US president is not elected by the people. That power is held by the electoral college.
The college will cast its votes on December 14, and under the constitution those votes will conclusively determine who will be the next president and vice-president. The national popular vote has no legal status.
Each state (plus the District of Columbia) “sends” a specified number of electors to the college (which doesn’t physically meet). The number is equal to the total number of members of Congress and the Senate representing that state. As all states have two senators regardless of population, the smaller states have a disproportionately high representation in the college.
The minimum number of electors is three per state, meaning that, for example, Wyoming has four times the voting power of California. The total number of electors is 538, hence the magic number of 270 imprinted in your brain.
The constitution says that each state has absolute power to determine how its electors will vote in the college. As late as 1860, some were still doing it by decision of their state congress rather than a popular vote. These days, all states have a popular vote for the presidential ticket, and that determines how they’ll vote in the electoral college.
You might have noticed that two states always appear on the voting maps with red and blue lines, rather than being coloured just red or blue. Maine and Nebraska use a “district” system for allocating their college votes, so they might be split (and, after this election, are). The other 48 states direct all their college votes on a winner-takes-all basis to the candidate who won the popular vote in that state.
That sounds fine so far, apart from the undemocratic make-up of the electoral college that resulted in Hillary Clinton beating Trump by more than 3 million votes overall but losing easily in the college (because the Democrat vote is heavily concentrated in a few big states while the Republicans own a large swathe of sparsely populated ones).
But then there’s the problem of “faithless” electors. Currently, 33 states plus DC have passed laws that require their electors to cast their votes in the college for the candidate who won the popular vote in their state. Generally, each party will have nominated its slate of electors who will become the electors for that state if their candidate wins. So, mostly, they’re loyally pledged anyway.
However, it doesn’t always work out that way. In the 2016 election, 10 electors attempted to vote in the college against the direction of the state that sent them. That resulted in litigation, and the US Supreme Court just this year ruled that the state laws which direct them to vote in a particular way are enforceable.
Which still leaves 17 states with no such law. Their electors remain unbound by any legal compulsion to vote in the college in accordance with what they promised to do, and there isn’t any obvious remedy if they go rogue.
And there’s a bigger hypothetical: a whole state legislature going rogue. As the constitution gives the power absolutely to each state to appoint its electors, the possibility remains that a Republican-controlled state legislature might decide to depart from the result that the popular vote would dictate.
Pennsylvania, for example, whose 20 electoral college votes took Biden over the line, has a Democrat governor but a Republican majority congress. What if the latter, following Trump’s insistence of electoral fraud, voted to override the certified outcome and send 20 Trumpian electors to the college?
Constitutional crisis is the what. But, remember, the constitution does not, anywhere, say that the president is elected by the people. The president is elected by the college, and the college is a creature of the states.
It’s unlikely. However, if you think the Republicans aren’t war gaming this right now, you definitely haven’t been concentrating.
Good article. With thugs like McConnel and Graham, the Republicans will surely be looking to do what Bradley suggests. Screw democracy, they just want power.
“… a whole state legislature going rogue. As the constitution gives the power absolutely to each state to appoint its electors, the possibility remains that a Republican-controlled state legislature might decide to depart from the result that the popular vote would dictate.”
Yes, that could happen. But why describe it as “going rogue”? It would only be using a mechanism deliberately built into the constitution by its designers for this purpose. If they had wanted the president to be elected to be elected by popular vote they would have set things up that way. If they had wanted a state’s electors to be bound by the state’s voters again they would have designed it that way. But they did not, because they wanted the electors and those who appoint the electors to be free to override the popular will. It’s all there in the records, such as the Federalist Papers. Not much has been done since to change this except for some states, as Bradley notes, passing laws requiring electors to vote with the popular will. So no matter how undemocratic such a manouevre may be, it is not “going rogue”.
But perhaps it is well past time that we stopped putting up with anyone talking about the USA as a great democracy, or even worse, the world’s greatest democracy.
True, SSR. C Wright Mills’ “The Power Elite” hypothesis is still relevant and applicable ie presidential, congressional and senate elections don’t determine who actually rules the US.
Yes, state legislature could depart from the result of the state’s popular vote. But why describe it as “going rogue”? It would only be using a mechanism deliberately built into the constitution by its designers for this purpose. If they had wanted the president to be elected to be elected by popular vote they would have set things up that way. If they had wanted a state’s electors to be bound by the state’s voters again they would have designed it that way. But they did not, because they wanted the electors and those who appoint the electors to be free to override the popular will. It’s all there in the records, such as the Federalist Papers. Not much has been done since to change this except for some states, as Bradley notes, passing laws requiring electors to vote with the popular will. So no matter how undemocratic such a manouevre may be, it is not “going rogue”.
But perhaps it is well past time that we stopped putting up with anyone talking about the USA as a great democracy, or even worse, the world’s greatest democracy.
I have lost count of the numer of times that I have referred to de Tocqueville on the subject. Has anyone bothered to read with he said?
de Tocqueville made just this point “because they wanted the electors
and those who appoint the electors to be free to override the popular will” 190 years ago (give or take) and proceeded to argue that the French astrios (being one) had nothing to worry about.
Is there any specific reason that you routinely type ‘astrios‘ (a type of cell separator)?
Do you mean ‘aristos‘ as an abbreviation “aristocrats”?
It is a telling indication of cognitive function that de Tocqueville could see the inherent contradictions of the US system almost 2 centuries ago yet nonetheless it continues to give government to those with the money to buy one.
Once upon a time the US had civics classes in all high schools, as did this country.
This is no longer the case – the majority of OZ voters do not understand the simple mechanics of our elections with alleged arcanum such as STV/PR etc.
I regard this forum as a chat group and thus I ought to offer more care regarding expression than I do. Therefore,
yes : ‘aristos’. Such is in fact the point because the Industrial Revolution created a capitalistic class whose
resources (over time) would exceed (rather than rival) the resources of the aristos and the landed gentry.
Numerous authors made the same point(s) as de Tocqueville; it is just the case that de Tocqueville has lasted the distance. There are traces of anxiety expressed by Thackeray.
Carl Sagan had a good deal to say (with evidence) as to the intentional ‘dumbing-down’ of the community so they would eventually find themselves in a stitation where they did not have the means to ask articulate questions (of thier betters)?
Our one & only hope is that (a) they might be scared of sparking mass riots amongst many of the 75 million+ people that voted for Biden & (b) they may be too scared of creating a precedent that could easily be exploited by Democratic States in the decades ahead.
Not much of a hope, is it? Who has the greater fire-power if it comes down to clashes in the streets – given that the number of Democrat voters is only a little more than Trump voters, it’s a reasonable guess most of the gun-nuts are in the Trump camp, several of the most powerful police unions have openly declared for Trump and the far right has been infiltrating the National Guard and other paramilitary forces for years.
I don’t think they need worry about a Democratic Party backlash in a few decades time.
Yeah, it’s possible Michael, always has been, but normally this would not be an option. But we have seen how traditions and norms have been trampled upon in these troubling times. The hardest part would be thinking about how they would spin it.
If it comes to pass, a constitutional crisis in the US is the least of it. This would reverberate around the western world. Does the rest of the world have the courage to refuse to deal with the greatest economic power. It would surely be a huge opportunity for China. Do they care? I doubt it.
THIS, above all, is the worst case scenario.