Donald Trump owes the Founding Fathers a deep debt of gratitude for making his past and present election-subversion plots possible. In particular, he should thank them for creating the Electoral College.
Most of the 55 white men of property who convened in Philadelphia in 1787 to revise the Articles of Confederation held a deep distrust of the masses. No less than 25 of them were slave owners. They considered but quickly rejected the possibility of electing the president by direct popular vote as excessively democratic. Instead, the national charter they produced embodied a host of compromises that were at their core profoundly racist and anti-democratic. These “Faustian bargains,” as many legal commentators have called them, included the structural design of the Senate, which accords each state two members regardless of population; the protection of slavery and states’ rights with the notorious “three-fifths” compromise, which allowed three-fifths of the enslaved populations of the Southern states to be counted for purposes of determining representation in the House of Representatives; and above all, the Electoral College.
As set forth in Article II of the Constitution, the Electoral College allocates “electors” to each state based on the size of each state’s House delegation, plus two senators. The three-fifths clause was necessary to secure support for the system from slave states, as it increased their number of electors. The candidate who wins a majority of the college becomes the president.
In the event that no candidate secures a majority, Article II as modified by the 12th Amendment (ratified in 1804) requires the House to conduct a “contingent election,” in which each state delegation, rather than each individual representative, gets one vote to determine the presidency. And under both the 12th Amendment and the 20th (ratified in 1933, and which moved the inauguration from March to January), it is the newly elected Congress, not the outgoing one, that makes the determination.
No other putative democracy in the world selects its chief executive in such a blatantly undemocratic manner.
As Berkeley law school Dean Erwin Chemerinsky explains in his latest book, “No Democracy Lasts Forever,” no other putative democracy in the world selects its chief executive in such a blatantly undemocratic manner. Because of the Electoral College, the U.S. has elected five times a president who lost the national popular vote — in 1824, 1876, 1888, 2000, and most egregiously, in 2016, when Trump claimed the Oval Office despite losing the popular vote to Hillary Clinton by nearly 3 million ballots. The country has conducted contingent elections for the president twice — in 1800, when the House handed the presidency to Thomas Jefferson, and in 1824, when the House selected John Quincy Adams.
Without the Electoral College and its rejection of popular democracy, Trump’s 2020 election-subversion plot, as well as the efforts currently underway, would have been unthinkable. The 2020 plan was built on a series of memos drafted by attorney Kenneth Chesebro and law professor John Eastman that called for the creation of “alternate” slates of Republican electors in swing states where Joe Biden won the popular vote. Under the plan, Vice President Mike Pence as president of the Senate would either accept the alternate slates as genuine during the joint session of Congress convened on Jan. 6, 2021 to confirm the winner; send the election back to state legislatures to reexamine their electoral certifications; or send the election to the House for a contingent ballot that would end in Trump’s favor.
The plan also called for invalidating the Election Count Act of 1887, which Congress adopted in the aftermath of the disputed 1876 contest between Republican Rutherford B. Hayes and Democrat Samuel Tilden. Like 2020, the 1876 election was plagued by allegations of fraud, and dual sets of electors from four states were submitted to Congress. Rather than forward the vote to the House, however, a special commission was appointed to determine the winner. In return for agreeing to end Reconstruction, Hayes was chosen.
The ECA spelled out in greater detail than the Constitution the procedure for tallying electoral votes. Although intended to minimize confusion and subversion, it was poorly drafted and provided inadequate safeguards. It permitted a state’s electoral votes to be challenged at the joint session if just two members of Congress, one from the House and one from the Senate, filed written objections. Once such objections were lodged, the ECA required the session to be suspended while the two chambers separated and debated the merits of the objections. If both chambers sustained the objections to a state’s votes, those votes were to be thrown out and not considered in the final electoral count. If the revised count still showed no candidate winning a majority, a contingent election in the House would ensue.
The plot failed and the ECA survived, but not before the country was nearly brought to its knees with the Jan. 6 insurrection that disrupted the joint session and the peaceful transfer of power. Pence held firm to his position that the vice president had a ministerial role limited to opening and counting electoral votes, and lacked the unilateral power to invalidate votes. Although objections were made to Arizona’s electoral certification, the Senate rebuffed the challenge by a vote of 93-6, and the House by a margin of 303-121.
Hoping to avoid another insurrection, Congress passed the Electoral Count Reform Act in 2022, correcting some of the ECA’s massive deficiencies. Among other provisions, the reform act clarifies the vice president’s role as strictly ministerial; and provides that states may only submit a single, conclusive slate of electors certified by the governor or other designated executive official. The new act also raises the objection threshold from one representative of each chamber to one-fifth of the members of each body; and it offers expedited review in federal court of election lawsuits.
No amount of subversion from Trump and his party can be ruled out.
The reform act will make it harder, but by no means impossible, for Trump’s current subversion scheme to work. The new plan is unfolding before our eyes, paralleling the 2020 plot with a flood of litigation contesting voting procedures in swing states, with the ultimate aim of getting at least one case before the Supreme Court, which has moved ever more sharply to the right and become little more than a tool of the MAGA movement.
Compounding the danger of renewed subversion, there is nothing in the Reform Act to prevent a far-right governor from colluding with similarly extreme state legislators to overturn the will of state voters and send a single fake slate of electors to the next joint session in 2025. Nor will the GOP be hard pressed to meet the new 20% objection threshold if it controls both chambers of Congress come January. Most foreboding, the reform act also does nothing to alter the rules governing contingent elections in the House.
With the polls showing the race between Trump and Kamala Harris coming down to the wire, no amount of subversion from Trump and his party can be ruled out. The plot this time is far more sophisticated and informed than its 2020 predecessor. If it succeeds, we can blame the Founding Fathers for creating a system that contained the seeds of its own destruction with the deeply anti-democratic Electoral College.
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