The 2020 US Presidential Election: A Victory for the Democrats but a Threat to Democracy

Michel Rosenfeld

Benjamin N. Cardozo School of Law

EDITORS’ NOTE: In consideration of the current critical developments in the United States of America we publish this longer post as an exception to our general length requirements.

Viewed apart from the political crisis and ominous threat to democracy that ensued in its aftermath, the 2020 election of Joseph Biden as president of the USA ranks as routine and well within the canons of American democracy. Biden won the popular contest by more than 7 million votes and the Electoral College vote by a very comfortable majority of 306 versus 232 for Trump. In contrast, in 2016 Hilary Clinton won the popular vote by nearly 3 million but lost the Electoral College vote by 306 to 232, and in 2000 Gore won the popular vote by around a half-million but lost the election. The 2000 election, hinged on a dispute concerning around 500 votes in Florida, as a result of a highly controversial US Supreme Court 5-4 decision rendered on 12 December 2000, over one month after the date of the election.

When viewed in the context of the sequence of events that transpired from election day, 3 November 2020, until the day of final certification by the US Congress, 6 January 2021, however, the 2020 election has come uncomfortably close to culminating in an authoritarian coup. Clamoring voting fraud before and after the election and with large numbers within the Republican Party standing behind him, including several of the leaders within the US Congress, Trump has not only refused to concede after it became clear that Biden had won—as is customary in all presidential elections—but also proclaimed he had been robbed of victory by cheating Democrats. Accordingly, Trump sought by various means, including patently illegal ones—including his seditious instigation of a mob of supporters to march to the Congress to disrupt the official sealing of Biden's victory—to reverse the decisive Electoral College loss that he found intolerable. Trump and his allies made relentless efforts to reverse the Biden win. In addition to endeavoring to nullify votes, they even explored the possibility of imposing martial law as proposed by a few of Trump's most exalted political allies.  By far the most egregious and frightening event in Trump's concerted assault on democracy occurred on 6 January 2020. It occurred when a joint session of the US Congress presided by Vice President Pence counted the electoral votes submitted by the several states to certify Biden, formally, as the president-elect.  As the Congress was in session, Trump incited a large number of demonstrators whom he had called upon to assemble and urged them to march on to the Congress to pressure those who were unwilling to reject Biden electors in order to open the door for an eventual second term for Trump. Shortly thereafter, an unruly mob, including several individuals with firearms, overthrew barricades and overcame the Capitol building's police force. They took over the chambers in which the two houses of Congress were meeting and many legislators' offices, vandalizing the later. In harrowing images televised throughout the world, parliamentarians fearing for their lives scrambled to hide under their chairs to avoid becoming victims in an exchange of fire between the armed mobsters and security guards with drawn guns. Although five deaths, several injuries, and extensive property damage occurred over several hours, no elected officials were harmed. Several hours later, after the building was secured the proceedings resumed. In the middle of the night, Vice President Pence declared Biden to be the 46th president of the US.

As will be detailed below, the turmoil surrounding the 2020 US presidential election and the perilous path it sets into the future are due primarily to two distinct factors: an eighteenth-century constitutional framing of democracy that has become largely inadequate for our times; and the veering of one of the two major American political parties toward authoritarianism and right-wing populism. Moreover, Trump with his combination of populist charisma, autocratic predilection, mob boss techniques, and systematic disregard for the rule of law, has emerged as a perfect catalyst for the disruption of settled American expectations regarding democracy. To better understand this, Part I below sets the 2020 election in constitutional perspective; Part II places it in its political context, and Part III focuses on hopes and fears that the 2020 experience raises for the future of democracy in the US.

I.                     Modern Presidential Elections as Constrained by an Obsolete Eighteenth-Century Constitutional Framework

The contemporary American system for the quadrennial election of the president is the diametrical opposite of its counterparts throughout Western constitutional democracies. The US president's election is entrusted, not to the country's population as a political unit in its own right, but instead to the fifty states and the District of Columbia. Moreover, the presidential election is further apportioned within each state to individual counties, adding up to more than 3,000. Also, as already mentioned, the winner of the presidential election in the US need not receive the majority or even a plurality of the votes, and disputes regarding the election can be brought before a veritable myriad of state and federal officials, judges, and legislators.

The arcane American system for electing the president goes back to the country's 1787 Constitution. The recourse to indirect election, through the Electoral College, arose in the context of passage from a confederation to a federation in which the states retained far greater importance than the just created national government. In addition, the framers of the Constitution were fearful of tyrannical majorities. They thus erected an institutional architecture fit to maximize "checks and balances" among the national and state governments and the three co-equal federal branches, the legislative, the executive, and the judicial one. Another important factor in the elaboration of the Electoral College was the accommodation of slavery, which was imprinted into the Constitution to ensure ratification of the latter by the original slaveholding southern states.

Based on the 1787 Constitution, voting in federal elections was very limited. Elections to the US House of Representatives were entrusted to the citizenry, but initially, only propertied white males had the right to vote. Elections to the Senate were left to state legislatures as was how members of the Electoral College were to be chosen. In the first presidential election in 1789, only 6 of the 13 states delegated theirselection of members to the Electoral College to the popular vote, and it would be well into the nineteenth century before all state legislatures would do the same. Finally, it would not be until 1913 that, by constitutional amendment, election to the US Senate became entrusted to universal suffrage (U.S. Const. amend. XVII).

Every US state is allocated a number of seats in the House of Representatives, depending on the size of its population, as well as two seats in the Senate. The number of electors that each state receives in the Electoral College apportionment is the equivalent of the number of House seats that the state in question possesses plus two on account of the number of its Senators. Accordingly, regardless of how sparse its population may be, the minimum of electors that a state can be granted is three, and in 2020 the most was the 55 awarded to California. This formula leads to significant underrepresentation of large states as exemplified by Wyoming's approximately 600,000 inhabitants represented by three electors versus California's 40 million by 55, resulting in Wyoming's population having proportionately over three times the influence of California's. Finally, slavery has been originally factored into the Electoral College inasmuch as the slaveholding states did not want their representation in the House of Representatives determined by the number of free persons within their boundaries. This led to the 3/5th compromise inscribed into the 1787 Constitution whereby, for purposes of determining a state's share of seats in the House, every slave was to be counted as 3/5th of a person.

Although the Electoral College does not intrinsically favor either of the two major political parties, it has definitely tilted to the Republican Party in the last generation. In both 2000 and 2016, the Republicans lost the popular vote while winning the Electoral College. Moreover, even in 2020 when Biden won the popular vote by more than 7 million and the electoral vote comfortably, a mere shift of around 43,000 votes in the three states he won with the narrowest of margins would have tipped the majority of electors to Trump. Also, as all states but two, Maine and Nebraska, award all electors to the winner of a plurality of the popular vote, and as more than a majority of states are solidly committed to the Democrats or the Republicans, the fate of presidential elections is usually dependent on the outcome of less than a dozen states. A presidential hopeful’s win of recent truly contested states, like Florida, Pennsylvania and Wisconsin, totaling 59 electoral votes by a combined 20,000 votes, would thus more than offset losing California's 55 electors by a couple of million votes.

The administration of presidential elections and the challenges to which they may give rise is problematic. This is not only because of decentralization and multiple overlapping institutions with supervisory authority but also because those in charge in every state are political office holders belonging to one of the two major political parties. The 2000 election illustrates this latter problem dramatically. That election hinged on Florida's electors where the two candidates, Bush and Gore, were within a few hundred votes of one another throughout the long-disputed period, leading to the above-mentioned US Supreme Court decision. The person in charge was the Florida Secretary of State, a staunch Republican closely allied to the Republican Florida Governor (who happened to be the brother of his party's presidential candidate). Having intensely campaigned for Bush, and because of her close personal political relationship with his brother, Democrats were very suspicious of her role and fearful, given the minimal voting margin in dispute in Florida, that she could plot to unfairly tilt the presidential election to Bush, thus robbing Gore and the Democrats. Moreover, the Florida vote recount occurring after the 2000 election aggravated all this, due to the decentralized voting administration apportioned among its 67 counties. Some of these counties provided electronic voting and others paper ballots. As the latter was ten times more prone to errors in the counting than the former, there was a serious hurdle to fairly settling a dispute involving a few hundred votes.

From an Electoral College standpoint, the most troublesome election was that of 1876 in which the winner in four states remained unresolved for an extensive period. An 1877 agreement between the Democrats and the Republicans finally settled the matter, awarding the presidency to the popular vote's loser by a margin of a single electoral vote. The painful legacy of 1876 led to the adoption of federal law designed to integrate the role of the states with that of the federal government so as to minimize the pitfalls in the official determination of the winner of the Electoral College vote. Each presidential candidate has a slate of electors in each state, and these are selected from among the most faithful party adherents, such as Bill and Hilary Clinton who were the New York electors for Biden in 2020. The electors of the candidate who wins the popular vote in a state become that state's members of the Electoral College and this becomes official upon certification by the state. After each state certifies its slate of electors, the Electoral College itself votes. The candidate who obtains the majority of that body's vote is declared the winner of the election. The Electoral College then sends the result of its vote to the US Congress, which is supposed to ratify the result in a joint session of both its houses, making the winning candidate officially the president-elect. In most cases, these various steps are routine and pro-forma. In case no candidate obtains a majority of the electors—this can happen if a third-party candidate wins one or more states—or a state's choice of electors is uncertain or disputed, the ultimate determiner of the winner of the election is the US Congress.

Even if the Electoral College always ran smoothly, maintaining it makes very little sense in the context of present-day American democracy. The US president is the only truly nationally elected political office holder and, unlike in the pre-industrial eighteenth century, much of today's politics within the country is nationalized. Indeed, the economy, the environment, health and welfare policy have now joined historically nationalized military and foreign affairs matters as the mainstay of nationwide political preoccupations. Both US senators who are elected statewide and House of Representative members who are elected within districts wholly encompassed within a single state can assure an input of state interests into federal policymaking. Accordingly, it seems highly desirable to have a singular major political representative, the president, answerable to the federal electorate as a unit without any state-related strings attached. However, as advantageous as this may be, because the Electoral College can only be abolished by a constitutional amendment—and that would require the approval of three-quarters of the state legislatures—the combination of small states and solidly Republican-leaning ones make the called for change virtually impossible for the foreseeable future.

II.                   The Politics of the 2020 US Presidential Election 

As noted above, the Biden election victory itself was clear and unambiguous. After the concerns regarding Russian interference affecting the 2016 election, the Trump Administration official in charge of supervising the 2020 election declared in its aftermath that it had been the most "secure" in US history. This official confirmed, contrary to Trump's repeated assertions, that there was no evidence of any significant fraud. Shortly thereafter, Trump fired the official in question and has since relentlessly asserted that Biden only won because of massive voter fraud but for which he would have won by a landslide. Moreover, from late in the evening of 3 November, the day of the election, when no winner was yet apparent but certain trends began pointing to Biden, Trump started a single-minded, relentless, quest to overturn the election results with no letup prior to the above described criminal disruption of the final certification by the US Congress on 6 January 2021. Trump's campaign and its acolytes launched more than fifty wholly unsuccessful lawsuits in multiple state and federal courts, including two summarily dismissed by the US Supreme Court. They pressured and threatened state, and federal Republican legislators, governors and secretaries of state of Republican-led states where Biden won; and they urged his more rabid supporters, including avowed white supremacists, to demonstrate against the "stolen election.” Trump’s constant barrage convinced more than 70% of Republicans that Biden’s victory was fraudulent and that he could only be an illegitimate president. Also, Trump’s virulent accusations and insistent pressure led many of his supporters to armed demonstrations outside the homes of state officials who certified Biden’s win in their state as well to issuing death threats on social media to those officials and their families. Significantly, though Trump’s campaign to overturn the election failed, it was aided and prolonged by widespread complicity among Republicans in the US Congress, including those in leadership in the House and the Senate. All established media outlets called Biden’s victory on 7 November. Yet, the Republican Majority Leader in the Senate did not acknowledge it until the Electoral College vote on 14 December. More shockingly, even after the assault on Congress on 6 January, eight Republican Senators and 139 Republican House members, including their top two leaders, cast votes against certifying Biden’s victory.

Trump’s campaign against the legitimacy of US presidential elections did not start in 2020. Already sometime before the 2016 election, when the polls presaged a victory by Hilary Clinton, Trump announced that he would not commit to accepting the results. Moreover, while he wholeheartedly accepted his 2016 victory, Trump nonetheless contested his loss of the popular vote alleging that it was due to 3 to 5 million fraudulent votes cast for Clinton by illegal immigrants. Trump then set up a federal commission to investigate that supposed fraud, but he ended up disbanding it as it failed to produce any supporting evidence.

In 2020, Trump stirred up the mantra of election fraud by demonizing the significant expansion of voting-by-mail due to the pandemic and ceaselessly insisting that he could not lose to Biden absent massive voting fraud. Trump equated voting-by-mail with fraud by falsely claiming it made it easy to cheat which, he insisted, Democrats would do systematically. Actually, significant voting-by-mail goes back to the US Civil War, and several states, starting with Oregon in 1978, have voted exclusively by mail since well before 2020. Trump himself voted by mail in 2020 and studies have shown that such votes have not favored Democrats or Republicans in the past. In 2016, one in four people voted by mail and an analysis of 250 million such votes revealed a rate of fraud of 0.00006%. What changed in 2020 was the expansion of voting-by-mail in several states that had previously limited it to those abroad or persons confined due to illness. Ironically, though it resulted in no increased fraud, the 2020 voting-by-mail favored Democrats in two salient ways. First, Democrats used this way of voting more frequently because they took the pandemic more seriously than Republicans (who on Trump’s initiative were often keen to downplay it). Second, this made voting easier for minorities and the poor who have historically been the victims of voter suppression schemes and who in large numbers favor Democrats.

Trump and his allies not only maligned voting-by-mail but also implemented many measures before the election to frustrate it and discredit it, in case he did not win outright. For example, states with Republican legislative majorities enacted an expansion of voting-by-mail but prohibited its counting before the conclusion of election day. This fed into Trump’s prediction, reiterated late on election night, that he won the legitimate vote counted on that day and that the yet uncounted mailed-in ballots were being dumped illegally into mailboxes by Democrats. In addition, the US Postmaster, a supposedly non-partisan administrator, but who happened to be a past Republican fundraiser with impressive donations to Trump, undertook a project to systematically slow down mail delivery and eliminate the traditional priority given mail ballots which have to be postmarked by election day to be valid.

In the end, Trump and his allies failed in their attempted coup for a few important reasons. The post office slowdown caused a public outcry for political and practical reasons as it slowed down the delivery of medicines and pension checks as well undermining the vote by mail undertaking. This forced a change of course, and the impact of the slowdown was blunted. Most importantly, state Republican officials charged with overseeing and certifying elections adhered to the rule of law notwithstanding pressure from Trump and even, in some cases, death threats from his supporters. Finally, in the ceaseless barrage of Trump lawsuits, all judges adhered to the rule of law, including the Trump nominees on lower federal courts and the US Supreme Court.

III.                 The 2020 Election as Paving the Way to Future Threats to Democracy 

Trump’s sustained attack against the rule of law throughout his presidency and what many regard as an attempted coup  to remain in office after he thoroughly lost the 2020 election have laid bare serious constitutional shortcomings and political pathologies. These weaknesses could certainly be exploited in the future by would-be authoritarians more politically adept than Trump. A much closer loss might lead to a presidential hopeful mounting legal challenges that may not easily be dismissed for total lack of support on either the facts or the law.

From a constitutional standpoint, three glaring weaknesses prominently highlighted in 2020 could well be better and more systematically exploited in the future. Two of these, the unwieldy entanglement of state and federal actors relating to the Electoral College and the weakening of institutional checks and balances pitting the president against the Congress due to party politics, have widely surfaced prior to the Trump presidency. However, the third one, namely the president’s ability to trample all legal and constitutional guardrails with virtual impunity, came for the most part as a startling surprise.

In retrospect, that latter surprise may be largely due to an American overconfidence in the force of its written constitution. By comparison, their common-law, British, ancestors maintain constitutional order through a combination of select written norms found in numerous separate documents spanning over centuries, securely rooted revered institutional constraints and traditional customs. As Margaret Thatcher repeatedly limited freedom of speech and of the press rights during her premiership in the UK, Americans boasted that this could never happen in the US due to the First Amendment, the most widely revered provision within their written constitution. In sharp contrast, however, though the constitutional text specifies that the US president “shall take care that the laws be faithfully executed,” Trump declared that he had absolute powers and engaged in increasingly bold and far-reaching trampling of the rule of law. He was even reported to have instructed several federal officials to violate the law to further some of his most controversial political objectives. He assured these officials he would grant them pardons if they were prosecuted as a consequence of obeying him. He was also eventually impeached for reaching out to Ukraine to help him promote false charges against Biden and for wrongfully withholding, Congressionally approved military aid, to that country (against US national security interests) to secure the latter’s assistance in illicitly influencing US presidential politics. Although Trump was impeached for conduct far more egregious than that which led to either the Nixon or the Clinton impeachment proceedings, Trump was acquitted in the Senate trial after that body’s Republican majority barred all  witness testimony, in spite of the availability of several people with direct knowledge bearing on the validity of the impeachment charges under consideration. Some Republican senators thought the impeachment experience would chasten Trump, but the exact opposite occurred. Trump only became more emboldened and embarked on a course of revenge against government whistleblowers and employees who following their legal obligations or provided requested information to the House of Representatives in the course of the latter’s initial impeachment inquiry. Add to that, further departures from the rule of law, the refusal to accept his election loss, his toying with the imposition of martial law—which prompted the military to declare that they had no role to play in settling election contests—and his incitation of a mob to descend on Congress. This leads to only one conclusion: without adherence to solid institutional constraints and traditional customary standards of restraint, the US written constitution is insufficient to ward off a transition to presidential authoritarianism.

The constitutional pitfalls surrounding the Electoral College have already been alluded to above–Trump, unsuccessfully, sought to exploit one among the several  that had come into play in the contested 2000 election. As noted, the US Constitution delegates to state legislatures the choice of how to select electors, and, currently, each state has laws prescribing a popular election and other ancillary laws. In 2000, as disputed questions of fact and law besieged the very close Florida election, some suggested that the state legislature, controlled by the Republicans, rather than the state executive or judiciary declare the winner. That did not happen in 2000. But, in 2020 having amply lost states like Michigan and Pennsylvania with Republican legislative majorities, Trump tried through all kinds of incentives and threats to persuade state legislators to disregard their state’s laws and to directly certify his electors to replace the lawfully installed Biden ones. Although some state legislators sided with Trump, there were not enough of them and too many states to overturn for this scheme to succeed. However, in some future case with only one or two states at stake and a few more persuadable state legislators, a strategy such as Trump’s could easily cause constitutional havoc.

Finally, for the constitutionally foreseen checks and balances between the US government's legislative and executive branches to work properly, it was contemplated that each of these would eagerly defend its institutional prerogatives. This built-in tension has been somewhat weakened by the entrenchment of the two-party political system and presidential power expansion. This expansion started in the 1930s, during the Roosevelt presidency, and continued during the Cold War and the era of globalization. However, a major shift in the Republican Party, starting in the 1990s but only fully consolidated during the Trump presidency, has led most of that party to simultaneously regard their political objectives as overriding democratic and constitutional restraints and commanding near-total subservience to Trump. Accordingly, today’s Republicans have, for the most part, facilitated and sustained Trump’s authoritarian populist designs as much as Hungary’s Fidesz party has for Orban and Poland’s Law and Justice party has for Kaczynski.

Many believe that with the advent of the Biden presidency, the constitutional and political dangers of Trumpism will eventually recede far into the horizon. Nevertheless, given the recent increased successes of authoritarian regimes throughout the globe and the constitutional and political fissures highlighted in the US during the Trump era, it is hard to predict whether Trump will prove an aberration or the precursor of an illiberal, authoritarian, American future.

Michel Rosenfeld is Professor of Law and Comparative Democracy at Benjamin N. Cardozo School of Law, New York, USA and President Emeritus of the IACL.

Suggested Citation: Michel Rosenfeld, ‘The 2020 US Presidential Election: A Victory for the Democrats but a Threat to Democracy’ IACL-AIDC Blog (14 January 2021) https://blog-iacl-aidc.org/2021-posts/2021/1/14/the-2020-us-presidential-election-a-victory-for-the-democrats-but-a-threat-to-democracy