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There's no guarantee that Mitch McConnell will allow Jon Ossoff (left) and Raphael Warnock to take their seats in the Senate without a fight.
Next Capitol stress test for democracy: What if the Senate won't seat Georgia's winners?
Jan 07 2021
Johnson is executive director of Election Reformers Network, a nonprofit founded by international election specialists to promote electoral improvements in the United States.
<p>The Senate election results in Georgia have Democrats dancing in the streets and democracy advocates cheering another seemingly successful high stress election. Turnout was extraordinary for a runoff, election officials performed efficiently, and fears of conflict and voter intimidation proved unfounded.</p><p>But there could be trouble ahead. Jon Ossoff and Raphael Warnock will not officially become senators, and cannot swing control of Congress to their party, until they are seated by the Senate. That normally mechanical procedure could become the next round in our never-ending partisan dogfight. </p><p>If either Republican candidate contests the results — as President Trump and his allies will surely insist — it will not be Georgia's stalwart secretary of state, Brad Raffensperger, with the last word on who won. Nor will it be the Georgia Supreme Court, or even the U.S. Supreme Court. </p><p>The "Judge of the election of ... members" of the Senate, according to the Constitution, is the Senate itself. </p><p>For the vast majority of elections to both the House and Senate, this quirk — let's be more honest, this flaw — in our founding document does not pose a problem. Normally, with losers having conceded, the House and Senate dispense with a vote and permit the state-certified winners to take their seats. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>But little else has happened normally this year, and with control of the Senate in the balance and Mitch McConnell still in charge, we should not be surprised if another challenge to our democracy is ahead. </p><p>McConnell did try to protect the Electoral College count from objections, but he did so less on principle than to avoid politically difficult votes for his caucus. At least for the election between Ossoff and David Perdue, the closer of the two on Tuesday, there are certain to be GOP claims asserting Perdue's victory. McConnell will be tempted to call for the Senate to investigate before seating a winner — which would mean depriving himself of the gavel.</p><p>In a parallel situation from 23 years ago, the GOP-controlled Senate seated the state-certified winner in Louisiana, Democrat Mary Landrieu, even as an investigation dragged on for months before affirming her 5,000-vote victory. By that precedent, McConnell should arrange for a vote to seat Ossoff and Warnock as soon as their victories are certified. </p><p>Maybe the terrible events at the Capitol on Wednesday will bring a stop to such brinkmanship, but it should not be surprising if McConnell again ignores a precedent that interferes with his exercise of power. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Adding to the complexity are at least two contested elections where legislative bodies are playing a role. In Pennsylvania, the GOP-controlled General Assembly is refusing to seat the state-certified Democratic winner of a close state Senate election until a legal challenge is completed. </p><p>In the House, Speaker Nancy Pelosi has agreed that the House Administration Committee will investigate the claims of Democrat Rita Hart, who is asking the House to use its constitutional prerogative to overturn her loss in Iowa's 2nd District. Pending the outcome, the House has seated her Republican opponent, Mariannette Miller-Meeks, certified by the state as the winner by a scant 6 votes. </p><p>The most legendarily bitter incident of the House using this power was 35 years ago. The Democratic majority voted to seat one of their own, Frank McCloskey of Indiana, after the state certified the winner as Republican challenger Richard McIntyre. Selective acceptance of evidence by the majority-run panel that investigated the dispute produced a four-vote McCloskey margin and led to a Republican walkout in protest. Subsequent investigations by journalists made clear McCloskey should not have been declared the winner. </p><p>Pelosi should take steps to avoid that kind of outcome in the Iowa contest — and to set a model for any Senate investigation of the Georgia elections. The House Administration Committee has seven Democrats and three Republicans, so Pelosi should see to it that a subcommittee with equal representation of both parties is given charge of the investigation. If the panel deadlocks, the victory for Republican Miller-Meeks as certified by the state should remain in force. </p><p>Doing so would put pressure on McConnell to conduct any Senate investigation in a similar bipartisan manner. And the Senate should follow both its own precedent and the House's approach to Miller-Meeks and promptly seat the state-certified winners from Georgia pending any investigation.</p><p>More broadly, there are lessons here from the fact that our Founders gave Congress judgment over the election of its own members. Writers of a constitution today would not take that path because of the clear conflict of interest and risk of abuse by the party with legislative control.</p><p>At the beginning of the world's long democracy learning curve, the Founders naively believed parties could be kept out of governing institutions, and they failed to anticipate how a political party could use this and other ways of controlling elections to keep itself in power. </p><p>France provides an instructive comparison. Its earlier constitutions followed the American example and gave its legislature the right to judge elections, which led to abuses. France's current Constitution, ratified in 1958, ended that practice and established a Constitutional Court as the definitive source of judgment on all national elections. </p><div></div><p>Our courts have moved over time to something of a similar role, but inconsistently and incompletely. Here as elsewhere our antiquated system is very vulnerable to the partisan will to hold power. That leaves us to hope that Senate Republicans improve on their track record and do the right thing. </p>
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Distorted U.S. democracy underscores urgency of Electoral College reform
Nov 12 2020
On Dec. 14, the Electoral College will cast its votes. Barring any unforeseen outrage, a majority will vote for Joe Biden, the popular vote winner in the general election, to sighs of relief. Many may conclude the creaky Electoral College works most of the time, and that any fixes are just too hard to worry about.
That would be a mistake.
<p>With a shift only .07 percent of the vote, we would have a second-place winner again, just as in 2000 and 2016.</p><p>And even when the Electoral College doesn't produce a <a href="https://www.nationalpopularvote.com/5-45-presidents-came-office-without-winning-national-popular-vote" target="_blank">second-place winner</a> its structure deeply distorts U.S. democracy. It is the reason swing states dominate campaigns. It marginalizes voters in all other states, and it deters strong independent candidates from running. Moreover, minority rule enabled by the Electoral College is now embedded in <a href="https://www.vox.com/21448334/republicans-supreme-court-ginsburg-democracy" rel="noopener noreferrer" target="_blank">Republican strategy</a>. It's in their campaigns for president and governing in the White House — judging by President Trump's treatment of California, New York and other blue states.</p><p>The biggest problem with the Electoral College is not the issue most people talk about, that <a href="https://www.bloomberg.com/opinion/articles/2019-06-12/electoral-college-may-not-give-advantage-to-smaller-states" rel="noopener noreferrer" target="_blank">small-state voters</a> have more weight. Many countries convey greater voting impact to less populated regions. In the United Kingdom, for example, the smallest parliamentary district has one-fifth the voting population — and thus five times the impact on who becomes prime minister — as the largest. Moreover, Republicans do not dominate small states: the 16 smallest divided evenly between the parties in 2016 and 2020. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>The more serious problem with the Electoral College is that it compels states to allocate electoral votes on a winner-take-all basis, giving swing states their dominant role and enabling the culture of minority rule now metastasized in the Republican Party. </p><p><a href="https://www.fairvote.org/how-the-electoral-college-became-winner-take-all" rel="noopener noreferrer" target="_blank">Winner-take-all </a>is not in the Constitution and was not part of the founders' intent. But it is very difficult to change without collective action among states. One idea, the <a href="https://www.nationalpopularvote.com/" rel="noopener noreferrer" target="_blank">National Popular Vote Interstate Compact</a>, would bypass a constitutional amendment through an agreement for states to give all electoral votes to the national popular vote winner. National Popular Vote survived a referendum in Colorado with 52 percent of the vote. That close result doesn't bode well for the compact's chances in the Republican-controlled legislatures that still need to approve it. The Colorado referendum also highlighted a vulnerability: The plan can require states to give all their electoral votes to a candidate who did not win that state.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>What's the alternative to National Popular Vote? Nebraska- or Maine-style allocation of electors by district won't work. That approach injects gerrymandering into presidential elections and would not have stopped a second-place Trump win in 2016. </p><p>The best alternative is a constitutional amendment offering something for both sides. Republicans want to keep the small-state advantage and the state-based, rather than national, calculation of results. Democrats want results that reflect the popular vote. Both priorities can be achieved by the <a href="https://electionreformers.org/the-proportional-allocation-solution/" rel="noopener noreferrer" target="_blank">Top-Two Proportional Amendment</a>, which makes states allocate their electoral votes proportionally to the top two vote-getters in the state and replaces human electors with electoral votes expressed in decimal form. </p><p>Here are four reasons this is a good idea:</p><ol class="ee-ol"><li>The president would nearly always be the popular vote winner.</li><li>With shares of electoral votes available in every state, candidates will have incentive to campaign nationwide.</li><li>The "spoiler" problem would largely be fixed. (The 1 percent in Michigan four years ago for Jill Stein probably swung 16 electoral votes; with top-two, her impact would have been .05 of an electoral vote.)</li><li>State results would finally reflect our true preferences, replacing the image of warring red and blue with different shades of purple.</li></ol><p>It may sound borderline crazy to talk about something requiring broad-based national agreement when one side won't even accept the Nov. 3 election results. But the idea could appeal to Republican officials outside of swing states because it would bring the presidential campaign back to their states to help with down-ballot races. </p><p>More importantly, the democracy-distorting impact of the Electoral College is increasing, and it is not just an every-four-year problem. Allowing this institution to continue in its current form is not an option. </p><p><a href="https://electionreformers.org/leadership/" rel="noopener noreferrer" target="_blank"><em>Kevin Johnson</em></a><em> is founder and executive director of </em><a href="https://thefulcrum.us/election-reformers-network" target="_self"><em>Election Reformers Network</em></a><em>. Read more from The Fulcrum's </em><a href="https://thefulcrum.us/election-dissection" target="_self"><em>Election Dissection</em></a><em> blog or see our </em><a href="https://thefulcrum.us/election-dissection/election-coverage" target="_self"><em>full list of contributors</em></a><em>.</em></p>
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Why street protests may not be the best strategy to protect the election
Nov 05 2020
In the months leading up to Election Day, civil society organizations carried out an extraordinary effort to make sure people across the country knew what to expect. That laid the groundwork for the core messages that have dominated in recent days: Every vote needs to be counted; the system is not broken just because it is taking longer to determine the winner; and election officials are in charge and will get the job done.
News organizations have amplified these messages. They have impressively stepped up to the challenge of covering this complicated, highly contentious election. The result has been much more calm during an uncertain post-election period than might have been expected. A development that many feared could trigger chaos — President Trump unilaterally declaring victory — has been a bit like the proverbial barking dog ignored by the passing truck.
<p> Then on Wednesday night, Trump's empty claim of victory had an impact on real life. Demonstrators in Portland, Ore., protesting Trump's actions <a href="https://www.oregonlive.com/portland/2020/11/marches-rallies-for-racial-justice-resume-wednesday-in-portland.html" rel="noopener noreferrer" target="_blank">smashed</a> the windows of a hotel, a church and other buildings. News reports indicate that organizations on the left have planned <a href="https://www.usatoday.com/story/news/nation/2020/11/04/election-unrest-hundreds-march-several-arrested-protests-continue/6158310002/" rel="noopener noreferrer" target="_blank">protests</a> in over a hundred cities in the coming days to "protect the vote count" and oppose the president. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Several groups began <a href="https://www.theatlantic.com/politics/archive/2020/09/how-democrats-are-preparing-post-election-chaos/616255/" rel="noopener noreferrer" target="_blank">planning</a> this mobilization many weeks before the election. A narrative guiding this planning is that the U.S. can learn from developing countries where "people power" in the streets played a critical role in preventing autocrats from stealing legitimate elections. </p><p>Protesting organizations are probably not wrong to assume that Trump will stop at nothing to win. But there's a lot less that he can do here than in the autocracies that are often invoked. In the country that launched the "people power" model, the Philippines, Ferdinand Marcos deployed the military to take control from election administrators until a massive mobilization of protestors persuaded the military to disobey the regime's orders. </p><p>In our decentralized system it is state governors, not the president, who control forces like the National Guard. Local police protect election infrastructure. The force that Trump can deploy is lawsuits. Though some protestors <a href="https://paloaltoonline.com/news/2020/11/04/mountain-view-protest-sparks-over-worries-that-trump-wont-accept-2020-election-results" rel="noopener noreferrer" target="_blank">are seeing these cases as evidence</a> our system is under threat, in fact they illustrate our democracy is working as it should. </p><p>One "coup" scenario protestors are girding for is a state legislature illegally <a href="https://www.theatlantic.com/magazine/archive/2020/11/what-if-trump-refuses-concede/616424/" rel="noopener noreferrer" target="_blank">naming</a> a separate slate of electors contrary to the election result. If that happens, it should indeed be met with massive protests. But until such a step appears possible, street protests by organizations on the left may do more harm than good. Protests run the risk of counter protests and violence , and any violence, regardless of who starts it, could discredit the election for a good share of the public.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>It may not be as dramatic as taking to the street, but another kind of people power is happening all across the country right now. The votes of the people are being accurately counted by servants of the people, our election administrators. For now, that power is more than enough. </p><p><a href="https://electionreformers.org/leadership/" rel="noopener noreferrer" target="_blank"><em>Kevin Johnson</em></a><em> is founder and executive director of </em><a href="https://thefulcrum.us/election-reformers-network" target="_self"><em>Election Reformers Network</em></a><em>. Read more from The Fulcrum's </em><a href="https://thefulcrum.us/election-dissection" target="_self"><em>Election Dissection</em></a><em> blog or see our </em><a href="https://thefulcrum.us/election-dissection/election-coverage" target="_self"><em>full list of contributors</em></a><em>.</em></p>
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