Since the rise of Trumpism I have consoled myself by believing that the future belongs to democracy. Each year the Republican party becomes increasingly “white” while the voting age population becomes more multi-racial.
But I am starting to have doubts. We know that Republicans use the tactics of voter suppression and gerrymandering to win elections they would otherwise lose. Voter suppression is just a matter of finding out how the Democratic voters cast their votes and then outlawing it. And a gerrymander is easily accomplished by packing large numbers of Democrats in a few districts to ensure that Republicans will win the majority of all districts.
Voter suppression and gerrymandering are completely foreign to the ethical basis of American democracy and should be banned no matter which party employs them. But luckily they have not done much till now to help Republicans win the biggest prize of all in American democracy—the presidency. But that may soon change.
Congress can pass laws, but presidents can quickly veto them, and putting together the 2/3rds majority necessary to overturn a veto is a very difficult trick to pull off. While the constitutional text grants only Congress the power to declare war, in recent times presidents of both parties have routinely used military power without congressional approval. The Supreme Court can overturn actions by either Congress or the President, but it is the president who chooses the Justices. And since the President holds the most power, the media give him or her the most attention in political coverage. In the 21st Century the president is the key player in American democracy.
I have always thought that, despite the Electoral College’s slight bias towards the Republicans, the Democrats will only become more and more successful in presidential elections as the Republican party becomes more “white” and the voters less so. But there is a little known constitutional text that might change that. The 12th Amendment authorizes a “contingent election”:
'“The person having the greatest number of votes for president shall be the president, if such number be a majority of the whole number of Electors appointed; and if no person have such majority… the House of Representatives shall choose immediately, by ballot, the President,”
I taught Constitutional law for over 30 years and don’t remember ever hearing the term “contingent election”, but Donald Trump, no slave to detail, seems very much aware of it. And before long we will be too. The Constitution was written before the two party system took hold in U.S. politics. The Twelfth Amendment was structured to ensure that we would not have a ”minority” president. But now the Republicans are interpreting the 12th Amendment to allow just that.
Here’s how it works. Let’s say there are three states where the Republicans hold the governorship and control the state legislature, but in which the Democratic candidate for president wins a majority of votes for President. States like Pennsylvania, Wisconsin, and Michigan come to mind. The established practice has been for the designated Republican official in such a state to “certify” how many electoral votes each candidate won. Traditionally this has been a routine affair. But Donald Trump changed all that in 2020 by demanding that Republican officials refuse to certify results aiding his opponent. He was unsuccessful in 2020, but still has hopes for 2024.
A refusal to certify the results of the election in one (or three) large states might prevent the Democratic nominee from winning a majority of the electoral votes, and when no candidate receives a majority of the electoral votes, the Electoral College is not authorized to declare a winner. Now the decision about who won will be made in the House of Representatives. Each state is allotted one vote which will be determined by which candidate wins the most votes in an electorate made up of that State’s House delegation.
In our history, only two times have presidential elections been decided by the House of Representatives, both times in the 19th Century. Experts tell us that if the procedure were invoked today the likely result would be that the Republican candidate would prevail because 27 of the 50 state congressional delegations have Republican majorities. Now we begin to understand why Donald Trump knew so much about contingent elections. The candidate who lost the election on election day can still win the presidency.
And if the contingent election mechanism awards the 2024 election to Donald Trump, there is no reason it cannot be employed again to elect a younger Republican in 2028. Maybe Jared Kushner, maybe Ivanka!
We have grown used to relying on the Supreme Court to see that the system is fair, but we know now that the present majority, vetted to ensure loyalty to the Republican party, has already supported the constitutionality of Republican gerrymanders, and is about to overrule Roe v. Wade. These decisions are being made by judges we have reason not to trust.
So what should we do? It appears the Democratic Party has chosen silence. That means it is more important than ever for us to speak out— loudly and often. Sharing this post with friends might be a good start. We can use The John Lewis Voting Rights Act as a platform to raise the issue of fairness in elections. If you think America is a land of economic inequality now, just think what it will be if the Republican party gains permanent control.
It’s time to Stop the REAL Steal!
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