With all the violence and vandalism on Jan. 6, it's easy to forget that Trump and his henchmen's real game plan was to send the election to the House and let them decide the winner as the Constitution anticipated would happen in case of a tie. This was to be accomplished by submitting competing sets of electors to the VP who would throw up his hands and say that he didn't know how to count the votes so Congress would have to decide the election. According to Trump lawyer Sidney Powell, they had hoped that in the event Pence didn't cooperate, having the mob storm the Capitol could have caused a delay which would have allowed Justice Samuel Alito time to stop the certification but they were thwarted when Speaker Nancy Pelosi reconvened Congress that night. (There is no word on whether Justice Alito had been apprised of his role but it's not a stretch to think he would have been happy to oblige considering his history of flying insurrectionist flags during that period.)
Had they persuaded Pence to twist the constitutional process for a tie vote into a process for resolving (fake) competing slates of electoral votes and had the House of Representatives taken it up, Trump would have won because votes are counted by state delegation and there are more Republican delegations than Democratic. There was a whole group of Republicans ready and willing to declare Trump the winner and let the courts and anyone else try and stop them under this unprecedented, unconstitutional plot. This was the coup.
Essentially, they were willing to stretch their undemocratic electoral college advantage in controlling rural, lower-populated states to an even more undemocratic electoral advantage in the House to steal the election. If Pence had cooperated, they might have pulled it off.
It's obvious that the framers made a huge error with this silly process of having the House delegations decide the election in case of a tie. It should be the popular vote winner. (It should be the popular vote winner in all cases but for some reason, we seem to be stuck with this antediluvian artifact of a compromise that should have been fixed over a century ago.)
There has long been a belief among a certain set of America's white elites that democracy is good in theory and a very nice idea, but really we can't let the riff-raff have the last word. Our history of denying the voting franchise to vast numbers of citizens goes all the way back to the beginning and we're still fighting over it. That's also why we're stuck with the Senate which gives two senators to states that have more cows than people and two senators to states that have many more people than cows. They finally managed to allow direct election of those senators, which was a step in the right direction, but the Senate is an undemocratic institution.
And after the debacles of the 2000 and 2016 elections in which Republicans won the presidency with victories in the electoral college while losing the popular vote, it's not necessary to make any argument that our presidential elections have a very serious, potentially fatal flaw for a modern democracy. It's really no wonder that the Republican Party, faced with the fact that it is a minority party, has decided to push the envelope even further.
Vote suppression and disenfranchisement are no longer enough. They have discovered they can change the system itself in their favor now. The latest example comes from Texas, which held its GOP convention last week. Aside from the odious culture war issues they installed in their platform, such as labeling gender-affirming care as child abuse, requiring the Bible to be taught in public schools and calling for "equal protection for the preborn" which means abortion can be punishable as a homicide, they are proposing to create an electoral college system in their state:
The State Legislature shall cause to be enacted a State Constitutional Amendment to add the additional criteria for election to a statewide office to include the majority vote of the counties with each individual county being assigned one vote allocated to the popular majority vote winner of each individual county.
In other words, they want to create a system in which every county has exactly the same vote, whether the county has 20 people or 5 million people. As Paul Waldman wrote in his newsletter The Cross Section, this would be the equivalent of California and Wyoming each having one electoral vote for president. Waldman ran some numbers and the outcome is astonishing:
In the 2020 election, 11,315,056 votes were cast for president in Texas. Fifty percent plus one of the votes cast in the smallest 128 counties (almost all of which Trump won) produces a total of 191,978 votes. Which means that under the GOP proposal, a candidate could win a statewide race with less than 2 percent of the vote.
That’s right: You could get blown out 96%-2% and become governor, attorney general, or any of the other statewide offices. The candidates who did this would inevitably be Republicans, because they’d be the ones winning all those small rural counties. Which of course is the point.
Texas isn't the only red state to attempt such an end run around democracy and majority rule. In Missouri where their ballot system was allowing some progressive policies to be passed by a majority of citizens, they tried to change the law to require that not only do they need a majority of voters to pass, but they must have a majority in five of their eight congressional districts which gives rural GOP districts the upper hand. Arizona has proposed a similar initiative. So far they haven't had any luck enacting any of these changes, and the Texas proposals are just part of the GOP platform for now, but does anyone think that MAGAfied parties in red states won't do it if they get the chance?
The old saw that "states are the laboratories of democracy" has long been one of the rationales for states' rights adherents to excuse their anti-democratic behavior. Donald Trump's Big Lie and coup attempt have given permission to these same political actors to experiment with ways to permanently advantage their shrinking constituency by corrupting the election systems in the states. And because of the electoral college, that will likely permanently advantage them in presidential elections as well.
Donald Trump will not win the popular vote next November but he might be able to eke out another win in the electoral college. The opposition which is fighting so energetically to save democracy is already fighting with one hand tied behind its back and it's only going to get worse.
