Election Nightmare 2020: What Rudy Giuliani Should Have Said

It looks like things are shaping up to be a long winter--and I'm not talking about coronavirus.

Rudy Giuliani has a press conference and is challenged by members of the press pool that the 2020 presidential election has already been called in favor of Joe Biden by the members of the main stream media. (only 1:08)

Giuliani's mockery in this moment might have seemed satisfying to him and Trump's supporters.  But he missed an opportunity to, not only put the media in their place over their partisan biases over the past four years, but to educate the public on America's electoral process for electing a president.  This is important because if the results get reversed and Trump gets elected for a second term, the public needs to understand why.

So here is what Giuliani should have said:

"This is a good opportunity to explain to the main stream news media, your listeners and the rest of the American public that we have a legal and constitutional process for electing a president in this country that is dictated by Article II, Section 1 of the Constitution of the United States and various other state laws.  The media and the press have no role in this process.  None!  Former presidents don't have a role in this process.  Hollywood has no role in this process.

"You can call races all day and night until you are blue in the face.  It doesn't matter.  Like polls they are only projections about what you think might happen.  You were wrong about the polls and you might be wrong about the projections.  They are not certified results.

"The Trump campaign and numerous witnesses that have been willing to sign sworn affidavits have identified irregularities and suspicious practices with our elections that are almost too numerous to list that might effect the election results.  We don't know how many ballots this will effect and neither do any of you.  So a little humility from you is in order and we expect you to cover these developments accurately and fairly to maintain the public trust in your organizations and our system of self-government.

"President Trump had warned the state governments and the public of the problems that mass mailing of ballots and voting by mail would entail due to the lack of a chain of custody and transparency in the process.  He raised concerns with their respective courts and his warnings went unheeded.  As a consequence, our elections in several key states were a chaotic disaster that is embroiled in controversy and uncertainty and may have a consequence on the final result.  

"For the sake of election integrity and the public trust we ask you to be patient as we investigate, correct and litigate any possible fraud or impropriety that we find so that the integrity of the 2020 elections can be restored."

If Giuliani said something along these lines, I think it would be better received by the public.  Our partisan pundits might have a problem with this, but fortunately, they don't have a role in the electoral process either!

Considering the Electoral College

The aftermath of the 2016 presidential election is seeing renewed calls for the abolition of the Electoral College when Donald Trump pulled off an EC victory despite losing the popular vote to Hillary Clinton.

There are numerous commentary and arguments in defense of the EC in addition to arguments advocating it's abolition.  So I won't rehash them here.  This article is going to take a different tack:  How would presidential elections be decided if the EC was abolished?  I hope to illustrate the popular adage, be careful what you ask for.  

Democrats and their liberal supporters are the ones pushing for abolition of the EC and they tend to forget the unintended consequences that are likely to happen if abolition of the EC becomes reality.  Liberals aren't very good at evaluating the risk of unintended consequences--unless it's deciding whether or not to kill a terrorist, then you hear all about escalation, escalation, escalation!

The Art of the Impossible

To begin this mental exercise we have to assume that the impossible is possible.  From Article V of The Constitution of the United States:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress..

What this says in plain language is that you need a supermajority in both houses of Congress in order to even propose an amendment.  That's hard to do when one of the parties benefits from the EC (Republicans in this case) and they have the same representation in the Senate as the party that would favor abolition of the EC (Democrats).

Assuming that we pulled off this miracle, we still need to submit the proposed amendment to the legislatures of the individual states for ratification.  A total of 38 of 50 state legislatures would need to agree to the proposed amendment for it to be included in the Constitution.

That's quite a high bar to meet.  It almost seems to suggest that if we want to start mucking around with our founding document, then we better be sure that it's what we really want to do.  A simple majority vote driven by demagoguery isn't going to cut it.  A broad consensus is required.

Let's assume that liberals were able to cobble together such a broad consensus, not only to achieve the supermajority needed in both houses of Congress to propose abolishing the electoral college, but to get ratification from enough states that typically vote for the party that benefits from the EC by a 2 to 1 margin.

A Brave New Campaign

It's a lamentable fact that policies we enact rarely have the effects that we anticipate.  This is because the new policy changes the political and social environment that we live in and people are forced to adapt to the new reality in a way that maximizes benefit to themselves.  Abolishing the EC won't be an exception to this rule.

Since we have changed the rules of our elections by abolishing the EC, it would be ignorant to assume that campaign strategies won't also change to accommodate the new reality.  The goal of any campaign is to win.

In 2016 Trump lost the popular vote by nearly 3 million.  If Trump's strategy is to obtain at least 270 electoral votes to assure victory then he's not going to mind this deficit.  Especially if the deficit occurs in states that will likely be won by his opponent.  Under the EC, nobody gets points for running up the score.

Hypothetically, if we were to abolish the EC for the 2016 election, Trump's campaign strategy would change.  Now, the popular vote would matter.  Trump's campaign might decide to focus on solid blue states that have the highest population but tended to vote Democrat when the EC was in force.  How many closet Republicans do you think Trump can find in New York or California--the types of Republicans that don't go out to vote because they know their vote doesn't matter when living in a Democratic majority state?  

Trump may decide to hold one of his rallies in Fresno and remind all Republicans in California that the EC is gone and their vote matters now!  Same thing in New York.  Do you think that Trump can find 3 million more votes from formerly disenfranchised voters in two blue states to secure a popular vote victory?

What about Hillary?  If the 2016 election was going to be decided by popular vote, would she have taken those blue wall states of Wisconsin, Michigan and Pennsylvania for granted that Trump ended up winning by slim margins?  Where would she find additional votes to make up for the extra 3 million or more votes that Trump would reasonably expect to get by slightly changing his campaign strategy?  Texas might be an obvious place for Hillary to find additional Democratic votes.  Where else?  Maybe Florida?  But Florida was already a battleground state under the current EC system.  She likely found all the Democratic votes she possibly could in Florida.  All other large states are predictably solid blue states with disenfranchised Republican supporters.

Hillary would have to campaign in smaller states that tend to be solidly Republican by safe and likely margins to find disenfranchised Democrat supporters.  But there aren't many people in those states.  She may find an extra ten thousand votes here or there, but not the millions she would need to secure a popular vote victory.  Not unless she was able to campaign in dozens of small states that she wouldn't have even bothered with when the EC was still in effect.  Abolishing the EC could easily double or triple Hillary's campaign efforts while making things considerably easier for Trump.  In our current reality, Hillary already had cash flow problems.  Now multiply that problem without the EC.

Be careful what you ask for!

Plurality Rules?

Despite Hillary Clinton winning the popular vote by nearly 3 million, that was only 48% of the ballots cast to Trump's 46% of the popular vote.  Neither candidate won the majority of the popular vote due to a small percentage of votes being cast for third party candidates.  In fact, this phenomenon happens with enough regularity that it's worth considering how we call elections if the EC is abolished and no candidate wins the majority of the popular vote.

According to the 12th Amendment that modified Article II of The Constitution of the United States:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates and the votes shall then be counted; 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 a majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by the states, the representation from each state having one vote;

Advocates of abolishing the EC seem blissfully unaware of the Constitutional Crisis that abolishing the EC would precipitate.  It would perhaps be the worst crisis in history.  Do you see how?  

First, there will be no electors to make sure that the President and Vice-President live in two separate states when casting ballots. The whole purpose of requiring electors to cast at least one ballot for somebody that doesn't live in the same state as themselves is to prevent concentrations of influence in our elections due to favoritism.  Likewise, a presidentIal candidate must consider a candidate that lives in a different state to run as his vice president for similar reasons. Abolition of the EC isn't going to abolish state loyalties.

 I suppose we can pass a law mandating that a president's running mate  must be from a different state than himself but it wouldn't be as Constitutional, would it?  And if you don't see why having a President and Vice-President from the same state is a big problem then you should do the rest of us a favor and stay home for election day.  You're too dangerous.

Second, you may abolish the Electors and rely on the popular vote, but the majority requirement for victory will remain intact.  That means a candidate must win at least 50% of the vote to win outright.  Neither Trump or Hillary had this majority.  So the Constitution dictates that the House of Representatives votes for the president.  Here's the kicker: Each state delegation only gets one vote! That means that a state like California that predictably votes Democrat and has 55 electoral votes will see its power greatly diminished to only one vote in the House of Representatives when choosing a president while small state delegations that will typically vote Republican begin wielding much more influence on elections.  Trump would still win in this scenario by an even wider margin than in the EC!

Be careful what you ask for!

Or perhaps we can amend the Constitution to allow each Representative to have a vote, regardless of delegation.  Which would mean the House of Representatives, itself, is the EC.  Some countries do it this way but we call them parliamentary democracies.  Such democracies don't have the three equal branches of government that distinguishes the American system.

Or perhaps you want to keep the House of Representatives out of it and let the people decide?  How do we handle it if nobody wins a majority of the popular vote?  Or do you want the largest plurality to win?  If so, then stay home on election day.  You're too dangerous.

We can amend the Constitution to mandate a runoff between the top two participants.  For 2016 that would mean a runoff between Donald Trump and Hillary Clinton (as if our election season wasn't long enough!).  Which wouldn't make the election much different than I already described; Trump will appeal to disenfranchised Republicans in large states while Hillary runs around all the small states of the country looking for a few more Democrat voters.  Trump might still win.

Once again, be careful what you ask for!

Gore v Bush Revisited

This reminds me of the last time there were calls to abolish the EC when Al Gore narrowly lost Florida and the EC to George W. Bush.  It triggered many recounts in Florida, but not in the rest of the country.  Can you imagine the chaos of nationwide recount without the EC?

Be careful what you ask for!

Seriously, you can't make this up!

As I was putting the final touches on this article, news breaks that we still don't know the results of the 2020 Democrat Iowa caucus due to some malfunction in the system that reports the results from Iowa's precincts.

Can you imagine this happening in a a nationwide election if the EC was abolished?

Be careful what you ask for!

Don't Forget 'bout the Russians!

With all the panic about foreign influence in our elections you would think that we would desire an electoral system that is more resilient to hacking.  Which would be more difficult to pull off: hacking several different states that may conduct their elections differently from each other?  Or hacking one large national database that the feds would need to maintain if the EC were abolished?

Even "Mr. Big Government", himself, President Obama admitted in 2016 that it's virtually impossible to rig an American election because our process is so decentralized.

Oh, you think the states would willingly conduct their own elections if the EC were abolished?  You sweet summer child!  Please, stay home on election day.

Did I tell you to be careful what you ask for, already?

Needless to say, abolishing the EC isn't as straight forward as abolishing slavery or alcohol (which we've actually done), even if you were to obtain the supermajorities to do it.  Abolishing the EC would fundamentally rewrite the Constitution and our election process for marginal results.