If There’s a Gap Between the Popular Vote and the Electoral College, Hit the Streets

We’re less than a week out from the presidential election, and Joe Biden is by all accounts the favorite to win both the Electoral College and the popular vote. Then again, so was Hillary Clinton. Though polling methods have been tweaked for accuracy in the intervening years, there remains a note of hesitation in liberals’ predictions about this race: defeat hurts bad enough without the shock of having been certain of victory.

A couple of plausible scenarios in particular have anti-Trump partisans on edge. First is the possibility that Donald Trump wins the Electoral College outright despite losing the popular vote, as happened in 2016. Second is the prospect that Trump has an Electoral College lead with many mail-in ballots yet to be counted, empowering the Right to launch a campaign of convincing state legislators and governors, and eventually the Supreme Court, to circumvent a free and fair vote count, resulting in a Trump victory.

This second scenario is frequently referred to in the press as “stealing the election.” In reality, both of these scenarios constitute a form of election stealing, as they both represent victory over the will of the majority, not by way of it. If either of them comes to pass, Americans should view it as an indictment of the nation’s undemocratic political institutions and make clear the illegitimacy of the outcome.

Americans’ worship of the Constitution, said by Republicans and Democrats alike to radiate infinite and mysterious wisdom, makes it hard to challenge the undemocratic features of our political system, the Electoral College among them. But the Electoral College does not have an inherent genius invisible to the naked eye. As political scientist Michael Nelson explained after Al Gore had apparently won the popular vote while losing the election to George W. Bush:

The Electoral College was no one’s first choice at the Constitutional Convention of 1787. Various delegates had all sorts of ideas about who should elect the president, including Congress, the people, the governors of the states, even a randomly selected group of legislators. Unable to agree on any of these, weary after three months of rehearsing the same old arguments, and racing toward adjournment, the convention appointed a committee to deal with presidential selection and other “postponed matters.” From this committee sprang the Electoral College, a mechanism so odd and complicated that it skirted the convention’s established lines of division. The delegates accepted the Electoral College mostly as a stopgap measure, to be replaced with something better once the new government was up and running.

That replacement has never occurred. Instead, we’ve been stuck with a convoluted and ill-considered mechanism for 250 years. On multiple occasions, this mechanism has plainly subverted popular control over the political process, resulting in the presidential administrations that failed to win the approval of a majority of American voters. The only justification for this mechanism is that it’s in the Constitution, and the Constitution is sacred.

Of all the methods considered by the Constitutional Convention for selecting the president, only one is even potentially democratic: allowing the American people themselves to decide directly, without an intermediary or interference of any kind. The other proposals, such as letting governors or state legislators choose, are, like many features of the Constitution, blatantly elitist and counter-majoritarian, imposing unnecessary obstacles to the expression of popular will. The Electoral College, originally designed as an elite gatekeeping device, eventually lost that role due to state laws against faithless electors and other devices, but it remains an illogical and confusing system that diverts the focus of campaigns away from the straightforward goal of winning the most votes nationwide.

Liberals started to criticize the Electoral College in earnest in the wake of the 2000 election. After dying down in the Obama years (after all, he won the Electoral College), they renewed their complaints after Hillary Clinton won the popular vote but lost the Electoral College in 2016. It has dawned on liberals that, under current conditions, the Electoral College is not merely anti-democratic but structurally anti-Democrat, the latter fact having awakened many to the former. The main response so far has been the National Popular Vote Interstate Compact, a legally binding agreement obligating states to cast their electoral votes for the popular vote winner. So far, the measure has been adopted by fifteen mostly blue states, but it will only go into effect when it has been joined by states collectively wielding a majority of electoral votes. As things stand, that seems like a distant prospect.

Needless to say, the Electoral College will not be replaced by a more democratic system by next week. We could very well end up in yet another situation where the popular will is undermined in broad daylight. If Trump loses the popular vote and wins the Electoral College, or if it looks like that might happen due to Republican machinations in the courts or the state legislatures, the fight-back will have to occur in the streets.

The response will have to encompass the whole gamut of protest, from mass demonstrations to boycotts to petitions. Ideally, it should also involve strikes. Strikes are the sharpest weapon in ordinary people’s toolbox, with the potential to place pressure on politicians and capitalists to resolve crises caused by work stoppages in the public and private sectors. Street protests can be effective, too, as Republicans showed in their own way in Florida in 2000 while Democrats were focused on a courtroom legal fight. And while we may or may not have the level of organization necessary to pull off disruptive strikes, this summer’s racial justice protests showed that we definitely have the capacity for mass protest.

Liberals have an obvious stake in striking or protesting in the event that Trump tries to steal the election, either directly or indirectly via the Electoral College. Socialists, for our part, may be far from enthusiastic about Joe Biden, but we’re vehemently opposed to the right-wing Trump administration and, more fundamentally, firmly committed to struggles for democratic reform. So we should take our place alongside liberals whose feelings about a prospective Biden administration are warmer than ours.

Millions of Americans are both repulsed by the Trump administration, particularly its handling of the coronavirus crisis, and increasingly unconvinced of the wisdom of the Electoral College. If we see a scenario similar to 2000 or 2016, there may be an explosion of popular activity more forceful than in either of those two cycles, regardless of what Democratic Party leaders say or do. Mass popular disruption would be welcome. Indeed, it’s probably the only thing that will work to prevent another election from being stolen right out from under our noses.