With Trump trailing Biden both in national polls and key swing state polls, some within his campaign have, apparently, begun formulating a strategy to attempt to bypass the popular vote and simply hand-generate their own loyalists to send to the Electoral College.
How is this even conceivable? Many people in the U.S. assume that the choice of president is a democratic one. Even while witnessing the winner of the popular vote losing in the Electoral College (as in 2000 and 2016), there’s an assumption that the choice of electors will follow the popular vote outcome on a state-by-state basis. It turns out, however, that this course of events is rooted more in habit than in constitutional doctrine.
In fact, the Constitution gives the states a bizarre (and frankly, quite frightening) level of discretion as to how they nominate their electors, and gives a large degree of wiggle room to a political candidate unwilling to accept the verdict of a popular vote defeat in any given state.
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The most pertinent passage simply reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.”
Because so many scholars like to think that we live in a democratic age, few strategists since the 19th century — when several elections, including, most notoriously, that of 1876, did end up being contested in Congress — have pondered the real implications for mischief inherent in this single sentence.
Now, however, with Trump growing increasingly desperate, some within his campaign are apparently exploring the possibility of exploiting this line.
Trump’s Reported Scheme to Bypass the Popular Vote
Two weeks, ago, The Atlantic published a long investigative piece by Barton Gellman, exploring all the ways the Trump campaign was planning to challenge state vote tallies if they ended up behind in the count after November 3. Among Gellman’s findings was that the campaign was in conversation with Republican state legislators in Pennsylvania — a swing state where Republicans control the legislature — to convince them to name their own Trump-loyal electors should the state vote be close enough to allow Trump’s attorneys to challenge the results and to use the courts to gum up the vote count.
The allegation is just one many other explosive revelations in Gellman’s report. If the election ends up being close, and if the result depends on a handful of swing states in which Republicans have majorities in the legislatures, this maneuver in particular could end up being extraordinarily important.
Earlier this week, Salon expanded on The Atlantic’s investigation, reporting that the Trump campaign has a six-state strategy to attempt an end-run around a popular vote defeat.
The states in questions are Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin — the first two of which have not only Republican-controlled legislatures but also Republican governors. The sentence in Salon’s report that ought to send chills down any observer’s spine is this one: “Sources in the Republican Party, at both state and national levels, say that the campaign is considering a plan to ‘bypass’ the popular vote results and install its own electors in key battleground states where the legislatures are controlled by Republicans.”
In other words, after months of Trump saying he could only lose through massive voter fraud, through a “rigged” election, the GOP’s closing strategy for November seems to be something along the lines of hoping against hope to pull out a popular vote victory, but, if need be, subsequently abandoning all pretense at majoritarian government and counting on the public to sit idly by while a losing candidate is coronated by hand-picked electors.
In all likelihood, if such a scenario does unfold, it will do so with Department of Justice backing, since Attorney General William Barr seems to be laying the groundwork to also challenge the legitimacy of the vote count: The Department of Justice’s Public Integrity Section released new guidelines this week allowing for the investigation and prosecution of alleged voter fraud or miscellaneous irregularities committed by postal workers and other federal officials during the vote and vote count processes. Voting rights experts immediately expressed alarm that this was Barr once again putting his thumbs on the scales to benefit his boss. They worried that, in the middle of a hotly contested election, the Department of Justice could announce indictments that, in the weeks leading up to the elections, played into Trump’s narrative about widespread fraud — even if that narrative then collapsed down the road, once the trials began.
Trump’s Window for a Genuine Electoral Window Is Closing
None of Trump’s threats to the electoral process are coming from a position of strength. In fact, that Trump’s people are even talking about such a strategy, and imagining ways to further undermine the public’s confidence in the electoral process, is a sign not of strength but of grievous weakness just three-and-a-half weeks out from the election. After all, confident campaigns and politicians do not mull openly about ignoring the will of the people. Instead, at this point in a campaign, they would normally be expected talk up their prospects of a knock-out win via the ballot box.
But for Team Trump, that’s looking less and less likely. The polls after the first presidential debate showed a marked shift toward Biden. And those numbers only solidified against the Republican Party after Trump contracted COVID and the White House became a hotspot that, seemingly, has infected more people by the hour over this past week.
In the swing states where Trump’s strategists are now mulling overriding the will of the electorate, the Republican candidate’s support is sagging — even as, in many of these states, early voting has already begun. In other words, his window for a genuine electoral win is closing, which is why the campaign’s rather frenetic efforts to look for alternative ways to get to the magic number of 270 electors to present to Congress seem only to be growing.
These political shenanigans are extraordinarily dangerous. In undermining confidence in democracy, this strategy is embracing a politics in which strongmen leaders are chosen not by the people but by back-room deals between different power-players and different key institutions of state — a strategy in which large parts of the populace are effectively disenfranchised, and one that relies on the threat of force, be it state-sanctioned or paramilitary, to put down that population’s protests when they come out against an illegitimate power-grab. Perhaps that’s what Senator Mike Lee of Utah was intimating when he wrote a series of tweets earlier this week bluntly touting the notion that “We are not a democracy” and that that is a good thing.
Of course, in reality, it would be a terrible thing if the U.S. abandoned even its purported adherence to the idea of government “of the people, by the people, for the people.” Indeed, for anyone who cares about the prospects for democracy in this country, and abroad, that is a road we must, at all costs, avoid going down.