If our election system somehow emerges intact from this period, Donald Trump has actually given us a path for a vital reform that has otherwise proved impossible to achieve. He has done so by exploding the rationale of the Electoral College and giving both parties reason to work toward its abolition.
The flaws of the Electoral College have been apparent essentially since the nation’s beginnings. But one of the central problems has been the possibility of one candidate winning the popular vote and another becoming President, something that has happened five times in the fifty presidential elections since 1824, when we started calculating the popular vote. It came reasonably close to happening again this year despite Joe Biden winning the popular vote by some 6 million votes, or roughly 4 percentage points.
A ten percent failure rate in the most consequential election system for a nation that considers itself a democracy whose leaders govern by consent of the people is, of course, highly problematic. And there have been numerous attempts to eliminate the Electoral College via constitutional amendment over the years. The most recent serious attempt came in 1969-1970, when it passed the House overwhelmingly but was defeated in the Senate by a bipartisan coalition of members from small (and Southern) states, who worried their voice in national politics would be lessened in a popular vote.
In recent years, the main obstacle for the abolition of the Electoral College is less about state size and more about partisanship. Because Democrats are clustered into a relatively small number of densely populated states while Republicans are more evenly distributed across the country, and because the Electoral College gives small states extra representation, Republicans can win more Electors even while garnering fewer votes. Thus have Republicans held the White House for 12 of the last 20 years while only winning the popular vote once during that time.
Will Democrats trust Republicans not to try this again in a closer election? Will Republicans trust Democrats not to try this as a reprisal in some future election where victory hangs on a few states?
The main argument used today against the Electoral College is that, basically, it’s not fair. And that’s really an argument that only appeals to the Democrats, who are losing elections because of it; Republicans are not keen on giving away a major representational advantage. And because an amendment requires a two-thirds vote in both chambers plus three quarters of the states, it would have no chance of passing without substantial bipartisan support.
Here’s where Trump’s latest shenanigans come in. Trump and his legal team have openly called for state legislatures to ignore the votes of their states’ residents and select Electors pledged to Trump instead, citing non-specific fraud for which no evidence has been offered. Trump even called elections officials in Wayne County, Michigan, to urge them to decertify their election results and has sought to pressure state legislative leaders there over their Electors.
We’ve not seen open attempts to influence the selection of state Electors since at least 1876, and I don't think an incumbent president has ever before pressured state officials like this to secure his own reelection. In doing this, Trump has opened a Pandora’s Box. He has pointed out a serious flaw in the presidential election system. The Electoral College not only allows for an undemocratic distortion of the vote; it provides a means for a party to steal an election.
No, Trump’s ploy is not likely to get very far. There are plenty of impediments to getting state legislators to go against their state’s voters on picking Electors. It involves changing state law to allow this to happen, for one thing. And it involves convincing legislators to overtly violate the wishes of their state’s voters, something that is sure to generate considerable political backlash, no less massive civil unrest. There are good reasons why no one except Trump has even proposed this.
But now that it’s out there, it may not be so easy to get the toothpaste back into the tube. Will Democrats trust Republicans not to try this again in a closer election? Will Republicans trust Democrats not to try this as a reprisal in some future election where victory hangs on a few states? Imagine John Kerry not conceding the night he lost to George W. Bush in 2004 but instead immediately starting a campaign to undermine faith in the Ohio vote, which he lost by just 2 percent, and persuade the state’s legislators to flip the whole election to him. We could see this sort of thing in many future elections.
It is now in both parties’ interests to fix this problem and prevent a situation where they may win an election comfortably on Election Day only to find the other party wooing legislators in swing states for weeks to follow. Trump has created a terrible precedent, but also a useful one; both Democrats and Republicans have the incentive to end the Electoral College.