Reading the articles, such as The Daily 202 in the Washington Post on November 2, 2020, that describe how Trump could lose the popular vote by more than he lost to Hillary but still win the presidency in 2020 in the Electoral College causes me grave concern.
We love proclaiming ourselves a great democracy and, at least before Trump, we have often sought to spread this gospel throughout the rest of the world, particularly in developing countries. And yet, here we are again, worried about whether Trump can win again by narrowly prevailing in Florida and Pennsylvania, and holding on to the red states he won in 2016.
Perhaps we were a nation of states in the 18th century and even through the 19th and early part of the 20th centuries. But I don’t think that describes the United States of America any longer. We are a nation of people and, yes, a nation of groups of people. That a candidate can be elected president despite losing the popular vote by winning a combination of states, some by the narrowest of margins, is no longer permissible in this 21st-century. Such an outcome undermines the legitimacy of our institutions by denying the majority its democratic right to govern. It is undeniable that such an electoral outcome is permitted under our Constitution but that doesn’t mean it is appropriate. It likely means that Americans will increasingly lose respect for our institutions, including the Constitution itself.
While our Constitution could be amended to eliminate the Electoral College, the amendment process is extremely cumbersome and the easiest process requires approval by a super majority of states. Then, too, another governmental institution that undermines majority rule is the United States Senate in which each state, regardless of its size, is represented by two senators. And our Constitution expressly prohibits changing the structure of the Senate by amendment absent consent of the affected states, making change almost impossible. It is very possible that over the next several decades this Senate structure will further undermine the legitimacy of our governmental institutions. To be sure, demographic changes and electoral realignments could lessen or postpone the likelihood of such an outcome.
Numerous books have been written about the exponential growth in power of the American presidency in the 20th century, particularly after World War II. During Richard Nixon‘s tenure there was much said about an Imperial Presidency. But, only under Trump‘s presidency have Americans become truly worried about an authoritarian president, with some drawing parallels to fascist autocrats in Europe before and during World War II. Trump‘s consistent refusal to accept Congressional oversight has made many Americans anxious about presidential authority and caused many to want to rein in that authority before it is further abused. Whether and how that can be done under our Constitution remains to be seen. Americans have increasingly discovered how important our norms have been in maintaining representative government, as opposed to the literal language in the Constitution and in statutes, as Trump has gone about trampling upon these very norms.
Americans must pay attention not only to the impact of the Electoral College and the structure of the Senate on American democracy but also to the authority exercisable by our presidents. Reforms are needed. Change is needed. Whether they are effectuated may determine the continued viability of American democracy as well as civility in American society.❏
