Commencing Demagogues and Ending Tyrants

‘The electoral college is a disaster for a democracy.’ The tweet came in the early hours of 7 November 2012, when it seemed likely that the Republican presidential candidate, Mitt Romney, who had lost the electoral college to Barack Obama, might end up ahead of Obama in the popular vote. In a further message, subsequently deleted, the same tweeter added that Obama had ‘lost the popular vote by a lot and won the election. We should have a revolution in this country!’ In fact, Obama won the popular vote, by 51 per cent to Romney’s 47, but in the intervening years Donald Trump – the author of those tweets – has come perilously close to effecting his desired revolution. He has bent an entire political party to his whims, whipped up angry partisanship among his supporters, called into question the fairness of American elections and destabilised the democratic process. What has made much of this possible – as well as Trump’s intuitive grasp of the ludic arts of populist communication (his vaudevillian sensibility, his coining of pointed and adhesive nicknames, his capacity to leaven bleak outrage with a sadistic comedy of the absurd) – is the electoral college itself.

Trump won both the electoral college and the presidency in 2016, but lost the popular vote by a substantial margin both in 2016 (by almost three million votes) and in 2020 (by seven million votes). Nevertheless, in 2020 Trump remained competitive in the electoral college, losing narrowly in several swing states: Arizona, Georgia, Wisconsin. These thin margins gave him the leverage to raise doubts about the integrity of the electoral process, claims that Republican voters still find persuasive: almost 70 per cent of them believe that Biden – and what Trump calls the ‘Biden crime family’ – stole the last election.

It is a bitter irony that the idea for an electoral college emerged during the Constitutional Convention of 1787 to guard against the possibility of a Trump-like demagogue attaining the presidency. In the first of the Federalist Papers, published in the New York press in 1787-88 as part of the campaign to ratify the proposed constitution, Alexander Hamilton warned: ‘of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues and ending tyrants.’ The new American republic was frail, and the prevailing language of politics – historians call it ‘classicalrepublicanism’ – was deeply pessimistic. Too often in history, it was argued, the vigilance and civic virtue required to sustain republican self-rule had dissipated, and the ensuing corruption, chaos and division had paved a path to dictatorship for a Caesar or a Cromwell. Republican government wasn’t thought compatible with territorial extent on the American scale. Small city-states had proved better at maintaining self-government than vast republics, which were more easily diverted towards imperial modes of governance. The framers of the constitution sought to sidestep these problems by devising a complex machinery of checks, balances and independent, interlocking institutions that would enable a not-quite-virtuous citizenry to uphold an enduring form of republican government. As well as the danger that a demagogue might sway the people in a popular, direct election to the presidency, the framers considered the obverse possibility: that if the presidency were to be filled by Congress, the legislature might be corrupted by cabals or factions. The solution was the electoral college, a temporary – and so less corruptible – institution, a deliberative body that would meet in each state to vote for the president. Its members would be independent-minded citizens of substance, men unlikely to be gulled by rabble-rousing patter.

But the founders’ intentions were quickly overtaken by the rise of political parties in the 1790s. An institution conceived as a means of insulating presidential elections from the influence of demagoguery and faction was soon converted into a tool of party politics. Meetings of supposedly independent electors dwindled into rigidly organised slates of party loyalists. These days, in every state except Nebraska and Maine, the first past the post in the popular vote wins all the state’s electoral votes. Modern practice has turned the intent of the constitution’s founders on its head. Electors who exercise their own judgment and vote at odds with the party slate are deemed ‘faithless electors’, and in some states – though, crucially, not all – are liable to be replaced.

The phenomenon of ‘faithless electors’ provides one of the openings that, according to Lawrence Lessig and Matthew Seligman, can be used to thwart the democratic will. In How to Steal a Presidential Election they outline the dizzyingly complicated procedures – for the most part, legal loopholes – that unscrupulous MAGA Republicans could employ to overturn unwelcome results. When a decisive electoral result seems likely these flaws don’t matter, but they might prove tempting in close elections, like the present one. In the event of a neck-and-neck contest in a state without laws preventing a faithless elector from casting a vote, Lessig and Seligman fear the consequences of fake news stories about voting irregularities. These stories might invite not only a swell of concern among Republicans but also outright intimidation by MAGA activists. If enough electors were intimidated into changing their vote, it might be enough to deny the putative winner a majority in the electoral college.

The furore surrounding the last election does not provide specific pointers for what might go wrong this time. Indeed, Lessig and Seligman are appalled at the cackhandedness of Trump’s legal team last time around. His lawyers launched 63 lawsuits in seven states, all of which failed, and then tried to focus attention on the function of the vice president at the congressional tally of results on 6 January 2021. Here the rainmaker in Trump’s entourage was John Eastman, as it happens a former student of Lessig’s at the University of Chicago, where he was in the same class as the anti-Trump Republican Liz Cheney. Eastman’s feeble argument – that Vice President Mike Pence was empowered to overturn Democratic slates from contested states – drew on a ‘thin reed of evidence’ from the electoral counts of 1796 and 1800. A near unanimous consensus of lawyers across the political spectrum, including some on the Republican right and among Pence’s advisers, regarded Eastman’s theory as nonsense. From the earliest days of the republic the practice has been for congressional tellers to do the counting, with the vice president little more than a master of ceremonies. An election, Lessig and Seligman insist, ‘cannot be reversed by the unilateral action of the vice president’.

The purported vice-presidential powers over the count went unmentioned in January 2001, when Vice President Al Gore uncontroversially presided over the counting of electoral votes after a tortuous, heavily litigated and unconvincing process handed victory to his Republican opponent, George W. Bush. Gore had won the popular vote, but the national election was decided in Florida, where Bush was 537 votes ahead when the Supreme Court, on some very flimsy reasoning, ordered Florida’s recount to be ‘stopped midstream’. Lessig and Seligman’s book appeared months before Vice President Kamala Harris replaced Joe Biden on the Democratic ticket. But, this time, if the result is closely contested or perceived somehow to have been perverted by sharp practice, Harris’s role at the congressional tally on 6 January could be fraught.

Given the messy aftermath of the 2020 election and the pandemonium that ensued on 6 January 2021, Congress legislated to tighten up procedures. Lessig and Seligman broadly welcome the Electoral Count Reform Act of 2022, but warn that some dangerous gaps still remain. They ask us to contemplate a hypothetical scenario: a MAGA Republican gets half a million more votes nationally than the Democratic candidate, while the Democrat wins enough states to get to 274 electoral votes, squeaking a narrow win in the electoral college. The election is accompanied in several places by claims of voter intimidation, which causes election officials to instigate new protocols at polling stations to protect the voting public and employees. Courts in the battleground states claim that, in doing so, administrators diverged from the strict letter of election law. The outcome of the presidential election depends on whether or not the votes at polling stations where the regulations were altered at the last minute should be counted. On the basis of these uncounted votes, Democrats claim that their candidate, not the MAGA Republican, really had the most votes nationally. The Republicans insist that in the electoral college, electors who are not bound by state laws to vote for their pledged candidate should unite the nation by voting for the Republican winner of the popular vote. In turn, ‘a divided media’ pumps out ‘two radically different realities for two wildly polarised audiences’. What if the overall result comes down to a state where – hypothetically – the Democrats have won narrowly, but a MAGA Republican governor declares that the victory was tainted with electoral irregularities, and promises that he will deliver the true result in his state? It’s all too depressingly plausible, with echoes both of Florida in 2000 and of the outroar over the Covid-related voting measures implemented in 2020. We shouldn’t disregard this as baseless scaremongering. ‘It’s not over on election day,’ Chris LaCivita, one of Trump’s senior advisers and a past master of the smear campaign, recently taunted. ‘It’s over on inauguration day.’

The most dangerous foe of democracy identified by Lessig and Seligman is a ‘recalcitrant rogue governor’: one who on some plausible pretext decides to certify a Republican slate in defiance of a Democratic victory in his or her state. Under the law the governor risks a short period of political martyrdom in jail, perhaps with the insurance of a presidential pardon after inauguration day. The real problem here is that the Electoral Count Reform Act requires the authority of a majority of both chambers of Congress to reject a slate of electors certified by a state governor: a near impossibility with a Republican majority in the House of Representatives. This, according to Lessig and Seligman, is why ‘rogue governors represent a catastrophic threat’ to the integrity of a presidential election.

But there are other ways to contrive an undemocratic result. Why not just take away the running of elections from the neutral officials who normally administer them? Lessig and Seligman tell us that it’s perfectly legal for a state to give the legislature the final say in calling out supposed electoral misconduct by making the legislature itself the state’s final elections board in presidential contests. The legislature could then fish for spurious irregularities to justify overturning a Democratic victory. Lessig and Seligman also say that there is no provision to stop ‘a state legislature from passing a law directing how its electors must vote’: the ultimate perversion of the framers’ conception of a body of independent electors. Troublingly, a recent legal precedent inadvertently supports this position. In the ‘faithless elector’ cases Chiafalo v. Washington and Colorado v. Baca – hangovers from 2016 that were decided only in 2020 – the Supreme Court ruled unanimously that electors did not have a right to vote contrary to the wishes of the state legislature. But, as Lessig and Seligman point out, the court failed to specify that its decision was limited to ‘a legislature that was simply seeking to affirm – rather than overrule – the choice its people made for president’.

At the core of the constitution lurks a more fundamental problem: it is unclear whether Americans have an unqualified right under the constitution to vote in a presidential election. Under Article II, each state is authorised to ‘appoint’ electors ‘in such manner as the legislature thereof may direct’. Since the mid-19th century the legislature of every state has ceded this role to the wider electorate. But could a state legislature shift the benign course of democratisation into reverse? According to Lessig and Seligman, nothing in the constitution specifically prevents a state legislature from cancelling its election in advance of election day. It’s an untested area. Is it legitimate to roll back democratic practices that are not required by the constitution? Or would the courts decide that pre-democratic selection procedures had fallen into permanent abeyance and could not be legally resurrected?

Legislators are more likely to be constrained by fear of public opinion. Under normal circumstances, voters would be indignant at losing the franchise in presidential elections. But consider a scenario in which fears about potential electoral malpractice had softened public attitudes in the state, and legislators presented the cancellation of an election as a temporary expedient to deal with fraudulent voting. Indeed, if a state legislature cancelled its presidential election, say, on 1 November – out of a plausible fear of potential irregularities at the poll – and decided to appoint the state electors itself, could the courts move fast enough before election day to block this dramatic but not necessarily unconstitutional departure from accepted practice? Probably not.

Could the Supreme Court be trusted to defend democracy in any case? In Bush v. Gore in 2000, the concurring opinion in favour of Bush by the three most conservative justices rested on ‘respect for the constitutionally prescribed role of state legislatures’ in presidential elections. Since then the Supreme Court has moved substantially further to the right, and conservative jurists now commonly tout different iterations of ‘independent state legislature theory’. We already know that we can’t trust Congress: 147 of its members – including eight senators – ‘flatly ignored the law’ on 6 January 2021. Lessig and Seligman conclude that ‘no rule change will cure a lack of good faith.’

Winning the electoral college requires 270 votes, but what happens in the event – unlikely, but not impossible if MAGA activists intimidate individual electors – that the candidates tie on 269 votes apiece? That would lead to what is known as a contingent election process, whereby the constitution mandates voting in the House of Representatives by state delegation – that is, with a single vote allocated per state. Each of the many sparsely populated, Republican-leaning states of the heartland gets one vote, the same as California or New York. A draw in the electoral college means a Republican presidency.

But even if there is no sharp practice and the election is fairly administered, Lessig and Seligman still worry that current arrangements leave around three-quarters of American voters effectively disenfranchised. The outcome in most states is readily predictable. That’s why presidential campaigns ignore the bulk of America – places that are reliably Democratic or reliably Republican – to focus on around ten swing states. The system itself – which was needlessly convoluted to begin with – is now broken.

The sophisticated thinkers of the American Enlightenment who framed the constitution were, in some respects, too clever by half. In Federalist number 68, Hamilton predicted that having an ‘intermediate body of electors’ in the form of the electoral college meant America’s indirect system of elections would ‘afford as little opportunity as possible to tumult and disorder’. Broadly speaking, he was correct – but only until the creation of Fox News in 1996, the controverted Bush v. Gore election of 2000 and the ever more fancifully twisted news stories of the social media age. At some point Americans are going to have to confront a painful truth: they can no longer rely on the constitutional machinery devised by the nation’s late 18th-century founders. Muddling through this next election will be a triumph in itself, but is not enough. The constitution, which attracts too much empty reverence and not enough attention to its wiring, would benefit from a thorough overhaul – preferably before rather than after a dictatorial coup or another civil war.