On Monday, amid heightened security measures spurred by threats of violence, the electors of the Electoral College cast their votes to affirm that Joe Biden will become the forty-sixth President of the United States. That vote is a ritual typically of interest only to the electors and their friends and families, but this year the major wire services moved news bulletins as the states tallied their counts. It was one more case of how Donald Trump’s denialism about his electoral defeat, and his continuing attempts to retain power by conjuring a constitutional crisis, have brought Americans into anxious acquaintance with the anachronistic mechanisms of a democracy that they can no longer take for granted.
Since November 3rd, news organizations have routinely described Trump’s efforts to hijack the Electoral College—filing baseless lawsuits, strong-arming state election officials, and mobilizing state legislatures to intervene—as “unprecedented.” That’s accurate, but it’s a lawyer’s word that can’t capture the shock and disorientation of watching an elected American President attempt a coup d’état, however ineptly. Trump’s method has a heedless, staggering, operatic quality familiar from the strongman coups I used to cover in countries such as Afghanistan.
The Electoral College has wobbled under Trump’s assaults, but this week the institution did its part. Biden welcomed the outcome and said that it affirmed the country’s democratic integrity. “Once again in America, the rule of law, our Constitution, and the will of the people prevailed,” the President-elect said on Monday evening. “Our democracy—pushed, tested, threatened—proved to be resilient, true, and strong.”
That verdict sounds optimistic. Trump’s coup attempt may have been haplessly improvised, lacking a sufficient number of determined allies, but, by repeating baseless claims of electoral fraud and by taking aim at weaknesses in the Electoral College, the President has laid out a map by which he and other Republicans can attempt more plausible antidemocratic action in the run-up to the 2022 and 2024 elections. They are likely to do this by seeking new laws to roll back early and mail-in voting, practices that grew this year in response to the pandemic. Among other efforts to expand access to the ballot, civil-rights organizations will have to battle to insure “that COVID-19-era reforms become permanent at the state and local level,” Hannah Fried, the national-campaign director of All Voting is Local, a project of the Leadership Conference, told me. But the more novel struggle will involve the continuing attempts of Trump allies to exploit the ambiguous constitutional role of state legislatures in the Electoral College system.
The problem with the legislatures begins with Article II, Section 1, Clause 2 of the Constitution, which provides that “each State shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors” who cast ballots for President. At the time that the article was written, those words meant what they said: the Constitutional Convention had not fully resolved how Presidents should be elected, and the matter was kicked to the states. Today, most state laws require the appointment of electors who vote in accordance with the outcome of the popular vote in each state, and that is what happened in all fifty states when the electors voted on Monday. Yet the presence in the Constitution of such sweeping-sounding language as “in such Manner as the Legislature thereof may direct” has given rise to speculation about how legislatures may act if they judge an election to be illegitimate. The Supreme Court has not had occasions to clarify all the potential ambiguities.
“There was a norm that, even though the state legislatures had this power,” on paper, to appoint their own electors, “they didn’t exercise it,” Alexander Keyssar, a historian at Harvard and the author of the recent book “Why Do We Still Have the Electoral College?” told me. The norm may have held this time, “but it’s been diminished,” he said. “This year has opened the door to future manipulations and to future gamesmanship with state legislatures. That worries me a good deal.”
The efforts by Trump and his lawyer Rudolph Giuliani to persuade Republican-controlled legislatures to create Trump-loyal slates of electors, without regard to their state’s certified voting results, failed, in part, because they sought to impose unprecedented actions by legislatures retroactively, after the votes of citizens had been cast, without explicit grounding for any intervention in state law. Yet these are obstacles that Republican legislatures could now seek to reduce for future elections.
The claim that state legislatures may have powers to intervene in disputed elections is not, in fact, a crackpot theory. The Electoral Count Act (E.C.A.) of 1877, an outdated federal law governing the Electoral College, contains a number of kludgy, untested provisions that future Republican opportunists might seek to exploit. In one passage, the law appears to authorize state legislatures to act in the case of a “failed” election. This provision was initially applied to specific problems of election administration in the horse-and-buggy era, such as requirements in some states for time-consuming runoffs if no candidate received a majority of votes in the first round. But the plain language in the law can be seen as open-ended. Republican allies of Trump could follow the map drawn by Central European countries such as Hungary, which has used its parliament and the courts to fashion a proto-authoritarian state even while expressing notional fealty to the democratic norms of the European Union. Republican legislatures, for example, could attempt to pass state laws that define “failed elections” under the E.C.A. and empower themselves to investigate allegations of election fraud—and to intervene in the Electoral College process if they judge the evidence to be sufficient.
If Democrats were to win control of both the House and the Senate, following next month’s runoff Senate elections in Georgia, “It would be super-wise to rewrite the E.C.A.,” Lawrence Lessig, a law professor at Harvard and a democratic-reform activist, told me. “We need to clear up what exceptional cases there are” that could ever allow state legislatures to intervene on the basis of a “failed election,” how such a determination would be made, and how judgments by legislatures would be subject to review by other political authorities and courts. There are other provisions of the E.C.A. that bear rewriting, too, Lessig said, such as a complicated tie-breaking procedure if disputed slates of electors are sent to Congress.
These are, of course, Band-Aid fixes to the Electoral College. Biden overcame the Republican advantage in the current system, reflecting how it gives disproportionate influence to small and rural states. But the gap between his margin of victory in the national popular vote—more than seven million votes—and his narrow margins in several of the swing states that gave him a victory in the Electoral College—fewer than twenty-five thousand in Georgia, Arizona, and Wisconsin—was the widest in decades. That discrepancy will only increase Republican incentives, during the next two election cycles, to suppress votes in the cities, manufacture fraud allegations, and mobilize state legislatures.
The Electoral College will plunge the country into a constitutional crisis sooner or later. Not only does it undermine the core democratic principle of “one person, one vote,” but it is an artifact of racial injustice initially designed, by way of the three-fifths compromise, to give disproportionate weight to states that allowed slavery. Yet it won’t be easy to fix or replace. The most promising current reform proposal is the National Popular Vote Interstate Compact, which, if adopted by enough states, and upheld as constitutional, would guarantee that each state would award its electoral votes to the candidate who won the largest share of the national popular vote. In November, Colorado’s voters passed a referendum adopting the compact, solidifying its adoption by states and the District of Columbia that, between them, account for a hundred and ninety-six electoral votes out of the two hundred and seventy needed to bring it into force. To the extent that adopting the compact requires cross-party consensus, the polarization that Trump’s Presidency has exacerbated has made the project harder, for now. But it is the only plausible path for reform available anytime soon.
On Tuesday, the Senate Majority Leader, Mitch McConnell, after weeks of alternating between silence and vocal support for Trump’s legal challenges based on claims of fraud, declared that the “Electoral College has spoken,” and offered his congratulations to President-elect Biden. McConnell and other Senate leaders also moved to try to head off objections to the electoral vote in January, when it is submitted to Congress. Under the E.C.A., individual members can object to the vote, and, if just one from each chamber does so, votes must be held in both chambers to decide whether to accept the disputed electoral votes (with a majority of both houses required for an objection to prevail). McConnell reportedly urged senators not to issue any objections, arguing that the intervention would fail even as it forced every Republican in Congress to publicly declare loyalty or disloyalty to Trump’s coup machinations. It was hardly a moment of constitutional heroism. The unwieldy infrastructure of American democracy survived this week, but it will be stress-tested again all too soon.
Read More About the Presidential Transition
- Donald Trump has survived impeachment, twenty-six sexual-misconduct accusations, and thousands of lawsuits. His luck may well end now that Joe Biden is the next President.
- With litigation unlikely to change the outcome of the election, Republicans are looking to strategies that might remain even after rebuffs both at the polls and in court.
- With the Trump Presidency ending, we need to talk about how to prevent the moral injuries of the past four years from happening again.
- If 2020 has demonstrated anything, it is the need to rebalance the economy to benefit the working class. There are many ways a Biden Administration can start.
- Trump is being forced to give up his attempt to overturn the election. But his efforts to build an alternative reality around himself will continue.
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