Role of Congress and Electoral College

The U.S. Constitution was designed to provide for an electoral process that would ensure the rule by men of property and keep the largest faction -- known as the propertyless, as the founding fathers put it -- out of power. The Electoral College, used only for presidential elections, is part of this arrangement. It was established as a mechanism against "the mob" to ensure continued rule by property owners -- today the ruling oligarchs (seen in Article II and Amendment 12). The Electoral College was part of the compromise with the system of slave labour, as was the entire Constitution. The unfolding developments today increasingly show how the Constitution and its electoral process are a compromise that favours the oligarchs, against a democracy of, by and for the people.

While some modifications were made with the agreement to hold a popular election for the president, the basic system outlined in the Constitution remains intact. Currently there are 538 electors in the electoral college, divided among each state as well as the District of Columbia. Electors are allocated based on the number of representatives each state has in the U.S. House of Representatives, plus two more for the state's Senators. Each state selects electors to the Electoral College, with Democrats and Republicans each prepared with a slate of electors. DC, while not a state, is allocated three electors. Whichever candidate gets a plurality of votes in the state receives the votes of all the electors for that state (except for Maine and Nebraska which use a system of proportional representation). The electors in each state then meet after the election to certify the election results for their state. By law these results are to be completed and submitted to Congress by the first Monday after the second Wednesday in December which in 2020 falls on December 14.

The new Congress, seated January 3 and meeting in joint session, is then required to validate the results. This is usually just a formality as the result is by then already well established. However, should this year be different because the results of particular states remain in dispute, preventing either candidate from securing the 270 Electoral College votes required, then it is up to the House of Representatives to resolve the dispute. This is done through what is called a "contingent election." Each state delegation gets only one vote. Depending on how the November election goes, even if the new House is comprised of a Democratic majority, such a vote could still favour the Republicans. This is because each state delegation can be majority Republican or Democratic.

As Speaker of the House, Nancy Pelosi has already informed members to be prepared for such a vote. Given the grave concerns about the potential for violence, both among the competing factions and against the people, including by the military, the certification of the vote by Congress could serve to lessen that likelihood. It would not necessarily occur along party lines, as what could be in play would be an effort to prevent civil war. Of course, if no compromise could be reached, such a vote could go like the elections themselves and serve to increase that possibility.

Some say that if Trump is defeated by a large enough plurality of votes and Biden secures the electoral votes required from states not contested, he will accept his defeat and not contest the result. This is why the Biden camp has paid so much attention to calling on people to vote. However, this assumes there is confidence among the people that their eligibility to vote will not be tampered with, which is not the case. Large swaths of Americans are not able to exercise their right to vote, including those who attempt to and who face closed polling places, or have been falsely removed from the rolls, or face intimidation, etc. So this too is a factor which increases the anxiety that the results of the election will not be peaceful.

It is also the case that Trump said November 1 that he will immediately send his lawyers in to demand recounts in the states likely to be contested, like Pennsylvania, Michigan, North Carolina, Wisconsin and others. This indicates that he will first attempt legal means and seek a Supreme Court ruling in his favour rather than immediately declare victory as he has threatened. However, doubts about the legitimacy of a Supreme Court ruling given the rapid confirmation of Trump appointee Amy Barrett are widespread. Already labour unions and officials have demanded no interference by the Supreme Court. And with or without a ruling, the House of Representatives still has to certify the vote. Thus even greater divisions and violence could occur.

Furthermore, since George W. Bush defeated Democratic incumbent Vice President Al Gore after a narrow and contested win that involved a Supreme Court decision to stop a recount in Florida, anarchy in the U.S. has been raised to authority. Violence has been used to settle conflicts both within the United States and abroad. A peaceful transition requires that there be  politics and mechanisms to sort out differences between the factions, none of which exist. Even the factions within the ruling class are so fluid and have as many voices in them as there are people which comprise them that one cannot expect to see negotiations which achieve anything substantial. Only making the claims which the people of the United States are entitled to make will yield different results.

Whatever the outcome of this election, the only thing that is certain is that the crisis of legitimacy and credibility in which the U.S. democracy and institutions are mired will continue. Neither candidate will have the consent of the people.

This article was published in

Volume 50 Number 7 - November 2, 2020

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Role of Congress and Electoral College

    

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