The Senate runoff election in Georgia today and the Congressional count of the Electoral College tomorrow bring our national trauma to a formal end. The days until January 20th will quickly pass and the inauguration of President-elect Joe Biden will happen. A blue senate will empower Joe Biden to quickly build his cabinet, fill and restart the federal government and put forth a legislative agenda to fulfill his many domestic campaign promises. A red senate will force the Biden team to satisfy themselves with Executive Branch powers for the duration of his presidency, as incumbent parties usually lose ground in interim elections. Either way, we will experience a return to normalcy in the form of daily politics and the daily work of government. I am, however, worried that we have swallowed a poison pill that the January 6th Congressional political drama will leave in our Democratic system.
The framers of the Constitution created the electoral college system, and the bicameral legislature as a series of internal checks to block the accumulation of national power in any one region or class of citizen. The Electoral College has functioned exactly as it is designed to do: the winning candidate could not rely on massive victory in heavily populated urban centers in order to gain victory. Biden won by over 7 million votes. But his victory depended on broad regional support in the East, the West, the South and the Midwest. The system held.
And then it came under excruciating attack by a recalcitrant incumbent looking for any tool in the law to bend the system to his will. Brazen or bold, President Trump has exposed our achilles heel.
Our election was organized and administered on the local and state levels, as is good and proper. Local election officials oversaw thousands of hours of volunteers and paid personnel to count - and often recount and audit - and eventually certify the results under the signature and seal of the chief electoral official of each state. Those certifications, done for two months now, determine the slate of electors who all voted according to federal law in early December. Their votes were certified, sealed and delivered to the National Archives and the Congress for announcement tomorrow. Every state has competed their process without alternative slates or disputed outcomes. The system doesn't care what the outgoing President thinks.
However, the formal challenge to electors planned for tomorrow in the Congress he has laid bare a glaring vulnerability that the framers of the Constitution seem to have overlooked: What if the Congress doesn't care who won the election and only cares to put their own champion in power?
Throughout this process, the Trump team has been simply incapable of accepting a world that has openly and knowingly rejected his leadership. Trump has adeptly grown his own base to record size, receiving more votes than any sitting president in history - a fact that has inflated his disbelief. How can he be doing better than he has ever done in numbers of followers, and still lose the election?! The pure truth is that an even larger number of Americans grew to oppose him at the same time. He is both more popular than ever, and less popular than ever.
The political pie in 2020 grew by over 10 million new votes compared to 2016, and Biden got a bigger piece of the bigger pie. Yes, Trump had more pie to eat this time, but that doesn't make him a winner. That basic understanding eludes him.
Raging and roiling, last night the President continued to push lies and delusions about his lost election while ostensibly campaigning in Georgia for the Republicans to hold the Senate. He is actively pressuring members of Congress and Vice-President Pence to invent some form of irregularity in the counting of the Electoral College to fabricate a Trump win.
He is crazy and deluded, but he is also not wrong. Congress does have the power to vote to reject individual states' slates of electors and they may do so without any cause or reason. The framers put two procedural blocks into place against abuse of this power: first, both houses (the Senate and the House) must separatly and independantly vote to reject a state's slate of electors; second, the Senate and House have no ability to chose or name new electors to replace rejected slates. Those are significant hurdle, but not impossible if one party were to hold a majority in both houses of the Congress.
The checks and balances don't work if the Congress is willing to reject electors "just because." This was unthinkable by the framers. Who would be so brazen as to ignore the actual election and simply ignore the states' certified slates of electors. Well, we now know it is not only very possible, but it is actually happening before our very eyes.
Over 100 Representatives and 11 Senators have declared that they will do just that tomorrow. Without any court case to support them, or alternatively appointed legal slates to choose from, those Congressional representatives will now use the system to force a poison pill down the throat of the American Democratic system. The only thing stopping them from actually renaming Trump president is the fact that the House of Representatives has a majority of Democratic members. We know this, because they did a directly analogous thing with the Supreme Court by denying Obama's last appointment, and giving it to Trump. The only reason more are not joining this charade is the fact that it will fail. Were that not the case, the entire Republican party would be rallying to the flag of Trump and overthrowing the election.
For now, the system held. Biden won 306 electors. The Senate and House together would need to each separately reject the slates from Georgia, Arizona, Nevada and one more state (Wisconsin, Michigan or Pennsylvania) to drop Biden below 270 and throw the election into the House of Representatives (where, voting by state legislations, Trump would win). If the Congress were in the hands of the Republicans, they could simply do so. The Constitution does not demand any reason for rejecting electors, only a political process by which to do so. This is obviously counter to the intent of the framers, which granted this power in the event of competing electors from a broken state-level electoral process. The idea that a federal body could simply vote away a state certified election for federal political purpose would have appalled them as the worst form of federal corruption. Something of that nature happened in 1876, with long lasting effect on the country's failed reconstruction in the wake of the civil war. You can read about that here.
From now on, any time both houses of Congress are held by a single political party in a Presidential election year, that party will be tempted by this power to simply ignore the national election and choose their own president. This would be the death knell of American Democracy. The flaw in the system is laid bare, and it must be fixed. The Constitution must be amended to eliminate the Congressional Objection to certified slates, perhaps leaving the challenges to be settled at the Supreme Court based on law rather than politics.