These are not easy days for supporters of American democracy. But what twists my innards is not the prospect that in three weeks’ time, the majority of voters could hand the reins of power to a vengeful authoritarian demagogue. Instead, I’m sickened by the prospect that the electoral college can do that for us – that Kamala Harris could win the national popular vote, but come up short where it counts.
We know the popular vote winner has already twice lost in this young century, in 2000 and again in 2016. But few realize how narrowly we missed a catastrophic result in 2020 when Biden won the national popular vote by a substantial margin – over 7 million votes. In every other democratic nation, such a result would have settled matters. Not in the US. Biden’s margin of victory in three key swing states – Arizona, Georgia and Wisconsin – was razor thin, with fewer than 44,000 votes combined.
It was no accident that Trump trained his efforts – the stuff of outstanding state and federal indictments – to overturn Biden’s victory in these three states. Had Trump succeeded in pressuring Georgia’s Republican secretary of state, Brad Raffensperger, to “find” the votes necessary to overcome Biden’s state lead, had he succeeded in submitting bogus slates of electoral college votes from Arizona and Wisconsin, he could have recaptured the White House.
Now, once again, our nation is held hostage to our manifestly defective means of electing the president. How did we arrive at this perilous point? The drafters of the constitution, exhausted by long days of toil in Philadelphia’s steamy Independence Hall in the summer of 1787, settled on the electoral college in something of an afterthought. Unable to decide between letting Congress elect the president or giving full power to the people, they ended up retrofitting a device used by the Holy Roman Empire to “elect” monarchs and emperors. By letting every state legislature choose a body of electors (equal to the state’s representation in Congress), the system was meant to find citizens of public standing capable of wisely choosing a chief executive.
Almost from the get-go, the system did not function as designed. With the rise of parties, states realized they could best leverage their power over the national outcome by awarding all their electoral college votes to the statewide winner of the popular vote – the system we have now. (By defeating Al Gore by 537 votes in Florida, George W Bush captured all of the citrus state’s electoral college votes and, with them, the White House.)
Those who nowadays defend the electoral college as a device designed to make sure the presidency isn’t always captured by “coastal elites” are offering a justification that has nothing to do with college’s original logic and ignoring the fact that the vast number of American citizens live in coastal states. An electoral system that awarded four votes to citizens of Wyoming and a single vote to citizens of California would be dismissed as a transparent violation of the constitutional principle of “one person, one vote”. And yet this is exactly what the electoral college does.
Worse still is how the electoral college dramatically magnifies the vote of citizens in a handful of swing states. Tens of millions of voters in non-competitive states are essentially disenfranchised. Kamala Harris presently enjoys a 24-point lead over Donald Trump in California. Votes for Trump in California count, then, for nothing, while all votes for Harris over the bare majority needed to win are utterly wasted. In the key swing states, things look very different.
The entire election will turn on what happens in seven states: Pennsylvania, Michigan, North Carolina, Georgia, Wisconsin, Nevada and Arizona. Voters in the remaining 43 states are reduced to the role of spectator. And so we’re left holding our breath, wondering whether American democracy will survive based on whether Arab Americans in Michigan feel betrayed by the Democratic party or whether Black men in Detroit, Milwaukee and Philadelphia will vote in sufficient numbers for Harris.
A system that permits a national election to turn on the outcome in a handful of counties in a handful of states is tailor-made for a candidate intent on sowing electoral chaos. When Trump incited a mob to attack the Capitol on 6 January 2021, his effort to remain in power had already failed. Every state (and the District of Columbia) had already certified its result, thanks to the honest and tireless efforts of election officials of both parties. The insurrection simply promised to delay the inevitable.
This time around, the Maga team knows better. This time, it will devote its efforts to monkeying with the state count. They have already succeeded in inserting a substantial number of Trump loyalists into key positions within the election infrastructure of the swing states. It doesn’t take much to muddy the outcome of a close state contest by targeting specific counties – especially when Trump has primed his supporters to reject any result that doesn’t result in his victory.
Given the dangers and dysfunctions of the electoral college, it is unsurprising that since 1816 there have been over 700 proposed amendments to reform or simply abolish the system. And yet all have foundered on the constitution’s arduous amendment process, which throughout our history has frustrated vitally needed constitutional change and now leaves us stuck with an electoral process that no one would seriously consider if tasked with designing a fresh system.
And so we face the ominous prospect that this defect of constitutional design may – against the wishes of the majority of American people – deliver a result that tolls the end of liberal democracy in America. Sickening.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College
