On Legitimacy (After the Election)

Before the election, I wrote about legitimacy. In that, I said “The second function of democracy is to convince everyone that it produces legitimate and correct choices.”

There are two important things worth watching. First, President Trump is attempting to cast doubt on an election in which he was thoroughly rejected by voters. Second, we spent the better part of a week wondering who was going to win the election. Both are worth some noticing and reflection.

First, the current gap is 5 million votes (out of 140 or so million cast). There are no credible reports of large scale fraud. There’s no way enough votes were miscounted to lead to a change in the result. President Trump and his allies are engaged in a reprehensible assault on our democracy.

Second, the country was on pins and needles over the winner of the election even after Joe Biden had a clear lead of millions of votes. Setting aside politics and history for a moment, if I told you about an election system in which half the time the eventual winner got fewer total votes than the loser, would you think that a fair system for deriving legitimacy? What if I told you that 3/4 of the recent wins by one party were won with fewer votes than went to the other party’s candidate? You probably would think that’s also a rigged system. And both are accurate descriptions of the Electoral College.

In 2016, I wrote “the Electoral College exists for a reason. (See Federalist #68. But it did not ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications,” or prevent someone who only had “Talents for low intrigue, and the little arts of popularity,” from becoming President. And so, having failed in its role as a backstop, what remains is a system that allocates the Presidency that’s out of line with the popular vote. Over the last 25 years, the Democratic party candidate has won all but one popular vote total (George Bush won a majority of the popular cote in 2004. In 2000, Bush won with 543,816 votes less than Al Gore, and in 2016, Trump won with 2.8 million fewer votes than Hillary Clinton. (The pattern doesn’t show before that.)

Maybe this is a statistical anomaly. If it is, then we can get through it. If not, if one party will regularly need 3-5 million more votes than the other to eke out victory, then our system of allocating legitimacy to wins is in trouble. I’ve written before about the National Popular Vote compact, and the chaos that ensued after Trump eked out a victory from behind.

Also, credible people can write that The Electoral College Is Not Broken. That’s the argument from history that it’s working precisely as designed. Other credible people can put forth the argument that a constitutional amendment is required.

There is, of course, a political argument that a divided government gives us checks and balances, but that system seems seriously out of whack.

Legitimacy is important, and if our institutions are not up to delivering it, we’re going to have problems.