Election Crisis and the Electoral College

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Alan Hirsch, author of A Short History of Presidential Elections Crises: (And How to Prevent the Next One), says while there is no election crisis now – Biden’s win is definitive – the electoral college is undemocratic and increases the possibilities of fraud, uncertain results, and more post-election crises. Hirsch joins Paul Jay on theAnalysis.news podcast.

Transcript edited for clarity

Paul Jay

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Everyone who follows American elections knows it takes 270 electoral votes to win the presidency. It’s not the popular vote that wins; its Electoral-College votes. If it were a direct election, there wouldn’t have been a President Trump. The whole system is undemocratic. It was established to allow a kind of steering of election results if the mobs and democracy get out of hand — that is, out of the hands of the elites. As conservative pundit George Will said a few years ago, elections are for deciding which section of the elites govern, not whether the elite shall govern.

And according to our guest, the Electoral College may also have been introduced to reinforce white supremacy. He says the Electoral College also greatly increases the possibilities of fraud and uncertain results and thus more post-election crises. While Trump is doing whatever he can to create such a crisis, the results of the 2020 election does not seem in doubt. But without the pandemic, it could have been otherwise. And who knows, maybe the Trump shenanigans aren’t over yet. To talk about the current situation, the history of election crises, and what should be done about the Electoral College is Alan Hirsch. He’s the author of A Short History of Presidential Election Crises: (And How to Prevent the Next One). [Alan is also Instructor in the Humanities and Chair of the Justice and Law Studies program at Williams College.] Thanks for joining us.

Alan Hirsch

My pleasure.

Paul Jay

So, first of all, start with the current situation. Is there, in fact, an election crisis going on with these various lawsuits? Or is it kind of Trump theatrics and in reality, this election is over and there isn’t really actually a crisis?

Alan Hirsch

Well, whether there’s a crisis or not remains to be seen. But if there is one, it’s not an election crisis. The election was actually administered extremely effectively and it produced a clear winner. So, this is not my idea of a[n election] crisis. The president seems determined to manufacture a political crisis, which, worst case, would morph into a constitutional crisis. But again, what I call an election crisis is when after the voting, we don’t know who won — in particular, when we don’t have a reliable mechanism for determining who won. That’s not the case here. We do know who won.

Paul Jay

Well, let’s just break down the current situation just a little bit more. One of the possibilities that seems a little bit far-fetched at the moment, although a few days ago it didn’t seem quite so far-fetched, is that the Electoral College could be manipulated by Republican-controlled state legislatures or Republican governors. It doesn’t really look like that’s going to happen. But what might that look like? And then, does Trump still have any possibility, at least from a legal point of view?

Alan Hirsch

So, Article II of the Constitution does give state legislatures the power to determine the manner in which the electors in their state will be selected. And that thin reed is what the Trump legal team has been hanging their entire case on. They say, it’s up to the legislatures. You can have an election, but it’s not up to the people. It’s up to the state legislatures. The problem is, and I’ll try to emphasize this with my voice, the Constitution says the legislatures shall determine the manner in which electors are selected, not that they will determine the electors. And they already did that. They provided, in all 50 states and the District of Columbia, that the electors would be selected by a popular vote. That’s happened.

For the legislatures to now substitute their own slate of electors would require them finding, essentially, that there was a failure in the election, that there was no election, or I suppose they can claim that it was marred by fraud. But the Constitution doesn’t envision the legislature just saying, we don’t like the way this election was run and, particularly, we don’t like the outcome. It requires that they stand by the method that they proposed, which in this case was an election. So, I don’t think that avenue is likely to prove fruitful for President Trump, but it hasn’t stopped him from trying.

Paul Jay

So, is this the only real gambit here that might work? And again, from a political point of view, I don’t see it happening. Most of the pundits don’t seem to think it’s happening. But if a few state legislatures did this — and let’s say it does eventually get to the Supreme Court — but that would take, I would guess, some time. I’m not sure about this part of my question. Could they simply delay the process so it passes the, what is it, January 6th date where it’s supposed to be certified? Like, could they find a way to manipulate this so it actually goes to Congress to be settled? Because they think in the House — again, another piece of craziness — in the House, it gets voted on per state, with each state having its own vote, in which case the Republicans would actually control the House, even though they don’t control the House. What a cockamamie system of elections! Anyway, go on.

Alan Hirsch

Right. So, to unpack that a little bit, the Electoral College meets on December 14th. And barring some crazy shenanigans, each state will certify its electoral votes, and that will give Joe Biden 306 electoral votes. But maybe things get muddy, maybe some states do what you’re suggesting: the Republicans try to submit their own slate, and so forth. The official votes for president are recorded on January 6th, exactly as you said, in front of a joint committee of the House and Senate.

Now, you raised the question, could things be unresolved by that date? Theoretically, they could. In the election of 1876, things were certainly up in the air by January 6th. And then, exactly as you said, were that to happen, if no candidate has a majority of electoral votes — and if things are unresolved, no one will — the election is thrown to the House of Representatives, which, just as you said, votes by state, which means Trump would win if everyone voted along party lines.

But at this point, I think this is an academic exercise. We’ve told you how the system will work if it fails, if it breaks down. But in reality, things are going to be resolved on January 6th, if not long before then.

Paul Jay

And that’s because of the politics of it. It just doesn’t look like the Republican Party and the various state legislatures are ready to have what would amount to a coup against the vote. And that just doesn’t look like it’s going to happen. I agree; I don’t think it looks like it’s going to happen. But it could because the system is so bloody weird.

Alan Hirsch

Right, and there is another piece to this which is going on even as we speak, which is the Trump campaign is filing lawsuits all over the country, throwing enough against the wall and hoping something sticks. I think they’ve won one out of twenty-six so far. But theoretically, if they could have a [state’s] election overturned or the results changed in litigation, they could change the relevant mathematics in the Electoral College. But I think that is at least as improbable as our scenario where the monkey business takes place in the state legislatures.

Paul Jay

OK, so let’s assume that’s right for now, and it looks like it is. There’s noise coming out of the White House is that he’s getting ready to leave. I think the main tactic he’s following, which I think is a very smart one on his part, is that he just keeps himself at the center of attention. He doesn’t want to go into obscurity. He wants to launch this media empire, in all likelihood. He wants to remain the leader of the 71 million people who voted for him. So, the longer this takes and the more every newscast starts with his face, he’s winning. At least he’s winning some weird kind of objective.

Alan Hirsch

Well, I will just add to that if he convinces those 71 million that he’s the winner and not the loser, that all the more cements their ties to him and his claim on the 2024 Republican nomination.

Paul Jay

And I don’t think it should be underestimated how many people think God chose Donald Trump to be president. I was watching a Christian-prophet-evangelical type. He’s actually of Indian origin, but he’s called a Christian prophet. His name is, I think, Sabu, or something. And apparently this guy has a fair following. His YouTube video I watched had about 1.5 million views — and this was before the election. This guy is saying that in a trance he was invited to go to heaven and talk to God. No, I’m not talking metaphorically here. He literally says, he was invited to “transition,” to go to heaven, and talk to God. And God told him that his choice for president was Trump.

I mean, I think that’s a kind of exaggerated form of how this happens. I would guess most religious people who voted for Trump, they’re not crazy, at least not crazy like that. But, that said, yeah, he’s going to convince people that this must be the work of the devil. A lot of this is in religious framing for quite a number of people.

Alan Hirsch

Yeah, it does certainly appear that there is a cult surrounding the president, and religion is outside my bailiwick so, I’m not going to comment on that further. But I do think he strengthens his hold on his voters when they are convinced he was cheated out of the election. And that certainly seems to be part of the PR battle that he is waging.

Paul Jay

OK, let’s go back to why there even is an Electoral College. You comment in the introduction to your book that one of the reasons is the defense of white supremacy. So, talk about the Electoral College and why you think it has to do with white supremacy.

Alan Hirsch

Well, we can’t separate it from the notorious three-fifths clause, which counted African-American slaves as three-fifths of a person for apportioning how much representation each state would get in Congress, and therefore the Electoral College. In fact, people like James Madison, who was a Virginian and a slaveholder although the father of the Constitution, wanted slaves to count for a full person because even though they were property, it would help the South if slaves counted because it would bolster their population. They settled for three-fifths, but that was still a way for them to gain greater representation. And the linkage between —

Paul Jay

Oh, so that’s the reason for the three-fifths: to add more electoral clout to the South.

Alan Hirsch

Exactly. When it suited their purposes, the Southerners would claim that blacks were just property. And, when it suited their purposes, they said, “No, count them. They are people for the purpose of the census and apportionment.” We know that that period was shameless in that hypocrisy. But the Electoral College did serve to strengthen the southern states and therefore it de facto served to protect slavery. But, you know, obviously it survived for reasons unrelated to that. And it still has very serious problems, completely apart from its ignoble beginnings.

Paul Jay

So why an electoral college and not a direct vote? I mean, lots of republics that followed the United States after the American Revolution have direct votes of different forms, but they are direct. Some countries have proportional representation. Some have ranking. The United States has this thing that almost seems to come out of the Roman Empire, or something, or the way they choose popes.

Alan Hirsch

Well, I think you were right when you speculated at the outset that this was a way of distancing the masses from the selection of the president. There would be this intervening body, the electors, and they would exercise their wisdom. And somewhere along the way — actually, it didn’t take very long — it became accepted that electors would do what the people of their state told them to do. There was the occasional, very rare “faithless elector.” But, basically, the people do elect the president.

Now, these days, one of the main arguments you get for keeping the Electoral College is that it enables small states to have some say in the process. So, if you picture it, California has, I believe, seventy-five times as many people as Montana. If we had a popular vote would candidates ever go to Montana? Would they ever go to Vermont? Would they ever go to these places, which are tiny? But when you give these states at least three electoral votes, so now California is only, let’s say, twenty-five times as populous in the Electoral College as Montana, now there’s some incentive for the candidates to pay attention to the entire country.

The problem is that this argument is just empirically ridiculous. Candidates today don’t go to Montana or California. They go to large states primarily, but swing states. So, if you happen to be lucky enough to live in one of the ten states that could go either way, that’s where the candidates will pay attention. So, that argument for the Electoral College simply fails as well.

It’s obviously undemocratic. A person’s vote in Montana counting three times as much as a person’s vote in California is very difficult to defend, even though supporters of the Electoral College will go through hoops to do it. But all of this is an argument that’s been made forever, and however strong the argument may be for abolishing the Electoral College, it doesn’t win for political reasons. The small states love the Electoral College.

But in my book, I try to make a new argument for abolishing the Electoral College, which I’d like to think should appeal to anyone — small state, large state, Democrat or Republican. And that is that the Electoral College is a recipe for these crisis elections. It is a way of having elections which turn on a few hundred votes in Florida in 2000 instead of a popular vote, which Al Gore won by 500,000. And we see that result throughout history. Rather decisive popular-vote wins, or at least clear popular-vote wins, are converted into these razor-thin margins in the Electoral College, which could be subject to recounts and could be subject to fraud in the future, to hacking and so forth.

Paul Jay

Just so I understand the logic: when you give individual states so much clout because of the Electoral College then very small margins can swing a whole election.

Alan Hirsch

Absolutely.

Paul Jay

Whereas if you had a national popular vote, it’s very unlikely to have a small number of votes swing it one way or the other. And the Electoral College is “first past the post.” I mean, if you win ten more [popular] votes, in the end, you get all the Electoral College votes, which is another piece of ridiculous —

Alan Hirsch

Totally. Totally ridiculous that in Florida in 2000, they were doing a recount after recount. They were trying to do what one writer called “measuring bacteria with a yardstick.” There was no way of knowing who won that state. The only thing we know is they each got about three million votes. And so, the person who almost randomly gets declared the winner by a few hundred votes after the last recount gets all twenty-five electoral votes. Is there any logic to that?

Paul Jay

Yeah. So, one of the reforms you’re suggesting is a proportional electoral college. So, if you’re splitting a state in the popular vote, you’ve got to split the Electoral College vote [proportionally].

Alan Hirsch

If we’re going to have an electoral college, it makes a whole lot more sense that Bush got thirteen and Gore twelve in Florida than all twenty-five going to Bush. Absolutely.

Paul Jay

I think the reason we’re talking about how to reform the Electoral College is because the rational thing is to get rid of the Electoral College if we’re actually going to be a democracy. But to get rid of it, you have to do that through a constitutional amendment, and all the smaller states are going to say no.

But there’s an interesting initiative you talk about in your book, which is that some states have actually passed their own laws requiring that Electoral College votes are determined in their state by the national popular vote, which is actually kind of doing an end run around the problem. [I.e., the National Popular Vote Interstate Compact.] Enough states have already signed this pledge to account for 170 [Electoral-College] votes, or something. [As of November, 2020, it’s 196.] I assume these are bigger states. Aren’t there enough bigger states to get over the 270 mark and do this?

Alan Hirsch

Well, you explained it well with one tiny correction. These are not just state laws. This is a compact among the states, because if one state passed its own law, simply saying that it would follow the national popular vote and cast all its electors in accordance with the national popular vote, that state would be reducing its own power unless other states did the same thing. So, this compact —

Paul Jay

But if all the big ones did…

Alan Hirsch

Right. So, the compact is just what you said. You need a combination of states totaling 270 or more electoral votes. That’s it. Once you get that, if they all honor that compact, whoever wins the national vote will win in the Electoral College. Just as you said, you will essentially have abolished the Electoral College just without calling it that. And I have not done the math as to exactly how few states could reach the 270, but it’s well under twenty-five. You’re exactly right. If the largest states in the country — it’s something like eleven or twelve states could do it — if all of the largest states band together to do it.

At this point, there’s another factor mitigating against it. It’s not just small states that don’t want it, but Republican states don’t want it, because as we saw in 2000, 2016, and again this year, the Electoral College favors Republicans. However, that’s transient. That may not be the case next election, two elections from now, three elections from now. So, it sure makes sense to me that everybody looks to the good of the country in the long term and not the short-term benefit to their party or their state. We’ll see if it happens.

Paul Jay

I mean, I can imagine that the Democrats control, I would think, most of the really big states. I suppose Texas and Florida, which are now kind of more up for grabs than anyone ever thought they were, are, on the other hand, still mostly Republican. I can’t see why Texas at this stage would sign on to such a thing. But if all the big states that support the Democrats do it and had 270, what do they care whether Florida and Texas do it or not?

Alan Hirsch

If it were that easy, Democrats would be winning in the Electoral College. This year, to get 270, Biden needed Arizona and Georgia and so forth. So, it’s tight. It’s not impossible. And it’s certainly a lot more likely for the Electoral College to be effectively eliminated through this back-door means than it is for a constitutional amendment which requires three-fourths of the states.

Paul Jay

So, that reform isn’t likely to happen any time soon. But you’re also making other arguments for at least how to change this process because of the possibilities of fraud and other things. Not the kind of stuff Trump’s talking about. But if you have a very close election in a state and it does get manipulated because of the Electoral-College votes, it could change the whole outcome even if the popular votes are the other way.

Alan Hirsch

Right. I proposed something which seems to me to be a good common-sense measure that no rational person should oppose, and that is a Presidential Election Review Board whose mission is to resolve election crises or disputes, which would be tri-partisan: Democrats, Republicans and independents. They would be given the authority to subpoena, to hold hearings, and to implement whatever remedy is necessary — in an absolute last resort, a new election. And this ideally would be a permanent board.

Now, when we have an election crisis, there’s this ad hoc approach to it. In both 1876 and 2000, we wake up the day after the election and everyone says, what do we do now? And then they cast about. In 1876, they came up with this ad hoc commission which was partisan and resolved the election in a partisan fashion. In 2000, the United States Supreme Court stopped recounts in a very disputed opinion. So, it seems clear to me that rather than relying on these ad hoc approaches that take place in a crisis environment, we have a process that is stipulated in advance that could rationally resolve these things.

Paul Jay

A question that pertains to this, but also to how the Electoral College itself is chosen: the two-party system seems so baked in. If we’re going to talk about reforms — and, of course, the two parties are never going to agree to it, but anyway — doesn’t there need to be some reform of both the Electoral College and even a commission that looks at elections that doesn’t bake in this duopoly?

Alan Hirsch

Yeah, no, I agree with that. I think the two-party system is a good idea if you have two healthy parties that maintain their control of the country because they’re responsive to the views of the citizens. But I don’t think that we have that now. I think we have parties that maintain their control through gerrymandering, through monopolies over the presidential debates, and so forth. So, I mean, I fear that’s a whole discussion unto itself. But the lock that the two parties have on the country right now has arguably reached an unhealthy point.

Paul Jay

Yeah. I mean, I go back to this quote from George Will in the beginning. I mean, it was designed so different sections of the elites could contend. I’ve always thought this is like feudalism, where one lord has to rally peasants and the other lord has to rally peasants and they’re going to go to war. And whoever has more resources and can tell the peasants, “Look, I’ll take care of your families if you die.” I mean, you can buy off your peasants. Or you can say, “You’re not going to have your land when you come back if you don’t go fight.”

Now they do it with television dollars. You know, whoever can raise the more dough. Although I think Bernie Sanders’ campaign has kind of thrown a bit of a wrench into that because he’s proven you can raise money without the feudal lords — without the lords of finance, I guess is what we should call them now. The whole system, as we said off the top, is fundamentally undemocratic. Still, maybe there’s some kind of tinkering that would make it a little bit better. So, if you go at this idea of a Review Board, how do you make that review board not just a partisan slugfest? Because even if you have one guy who is supposedly independent… I mean, using judges doesn’t solve the problem. There was nothing independent about the Supreme Court in the year 2000. That was completely partisan.

Alan Hirsch

Right, but, you know, judges are appointed by a president and these days only confirmed if the Senate is in the same party of that president. This Review Board would be selected in a bipartisan fashion. And the people on it would be the sort of people who transcend political labels. The rare people who are respected by both parties. I mention a bunch of names in the book. Colin Powell comes to mind, if I had to just throw one name out here to give people an idea of what I’m talking about.

And then in addition, I would stipulate that there be just as many members who are not Republican or Democratic, (a) to protect the interests of third parties, should that be at issue, and, (b) so that you couldn’t simply get one party imposing its will on another or a stalemate because you had an equal number of Democrats and Republicans. So, we have to give a lot of thought to the structure of all this. And I propose the actual language of a constitutional amendment in the book. But of course, you know, I’m just trying to get this conversation started. There is, I’m sure, room for tweaking it and amending it and so forth. But it shouldn’t be impossible to establish a board that is above politics.

Paul Jay

If the Democrats are successful with the Senate races in Georgia — and who knows what to believe, but from the way the pundits in the media are talking, it’s actually looking more possible than not. (I’ve got my own little pet theory, which is Trump would prefer the Republicans lose in Georgia because if they win and the Republicans control the Senate, Mitch McConnell goes center-stage and Trump goes off to some media thing. Whereas if it’s a fully Democratic-controlled thing, then Trump’s the leader of the opposition. This is just my own little speculation. But anyway.)

Alan Hirsch

Not that that’s exactly a conspiracy theory, but if you want to get into that sort of political novelist’s mindset, notice that the two elections in Georgia, the special elections, are on January 5th, one day before the joint House-Senate committee meets. And if the joint House and Senate cannot reach agreement, they’re supposed to go back to their [respective] bodies. So, you could get the two Georgia senators one way or another involved in this whole process. And theoretically, it could be important whether there are fifty or forty-eight [for either party].

But guess what? Even if the two Democrats win and they get 50, who presides over this joint committee? The vice president, who as of January 6th will still be Mike Pence. So, there’s no way around that one.

Paul Jay

[Laughs.] And, who knows, maybe by the end of all this, it’s President Pelosi?

Alan Hirsch

Not completely impossible.

Paul Jay

Not totally far-fetched.

Alan Hirsch

Yeah. I was just going to say, when Covid was spreading rapidly through the administration, that, I’m sure, went through some people’s minds.

Paul Jay

Yeah, no doubt part of the reason why Trump had to get better so quickly. All right —

Alan Hirsch

I’m sorry, I just had one bit to your speculation about Trump wanting the Georgia seats to go Democratic. To me, it’s not that clear that it makes a huge difference. It would be nice for the Democrats to have 50, but unless they get rid of the filibuster, that 50 is not a whole lot better than 49. They’re still not going to be able to get most legislation passed, and it’s pretty clear that they’re not going to be able to get the filibuster eliminated if they get the 50 votes seeing as Senator Manchin of West Virginia has already said he would not vote to get rid of it.

Paul Jay

That’s just crazy. Why is Manchin still in the Democratic Party? [Laughter.] Of course, that would give the Republicans another senator so it wouldn’t make any difference.

Alan Hirsch

Exactly. Republicans say that about Susan Collins sometimes. But then at the end of the day, I think they’re glad she’s a Republican.

Paul Jay

Yeah, I think she winds up with the Republicans more often than he does with the Democrats.

Alan Hirsch

Yeah, you may be right about that.

Paul Jay

Just one other thing, I guess. If the Democrats ever were to actually take control of the Senate and actually follow through on some of the promises some leading Democrats have made to give statehood to D.C. and to Puerto Rico, that’s, what, six more Electoral-College votes that the Democrats can likely rely on?

Alan Hirsch

Four.

Paul Jay

More?

Alan Hirsch

Well, for electoral votes, D.C. would still have the same three, so it would be three more from Puerto Rico. But it would be four more senators.

Paul Jay

Four more senators. Which is a serious issue.

Alan Hirsch

And I think one reason this isn’t likely to happen.

Paul Jay

Anything else you want to add to the basic question about the Electoral College?

Alan Hirsch

No, I think just bringing this full circle, I would want to emphasize that I don’t like the Electoral College. The US election system has some wrinkles. It has some real problems. But in 2020, the problem wasn’t the system. The reason we aren’t having the transition right now, the reason some of us are still a little bit afraid about how this will all play out is not the system. It’s the president.

Paul Jay

All right. Thanks very much for joining us, Alan.

Alan Hirsch

Thank you, Paul.

Paul Jay

And thank you for joining us on theAnalysis.news podcast. And please don’t forget what I said at the beginning. We have a $10,000 matching grant. So, if you go to the top of our Web page and you donate now, you’ll double your donation.