To return to a basic observation of American government: Ever since Andrew Jackson, the president has been empowered — contrary to the expectations of the Framers — not only by the Constitution but by the mandate he has received through popular election. Sure, we’ve retained the electors, but they, early on, became popularly elected as pledged to the candidate of a particular party. They have a very specific electoral mandate. And Americans have thought of themselves as having a national presidential election that confers a democratic mandate on the winner.
So maybe the most important argument against retaining the electors is that it can happen, if rarely, that a candidate can win a majority of the electors while losing the popular vote (which is a completely unofficial tabulation of all the votes cast in the 50 states for slates of electors).
What’s wrong with that outcome is not that it’s undemocratic (no electoral system except the lottery used by the ancient Athenians is perfectly democratic), but it weakens the president in a way not anticipated by the Framers. He or she might well be lacking in the requisite energy by having to govern without a mandate. Certainly George W. Bush, who lost the popular vote to Al Gore, was a “low energy” president until animated by the challenge of 9/11.
Trump’s situation might be regarded as worse, insofar as he lost the popular vote by considerably more than Bush did. And 2016 can’t be confused with 2000, insofar as so many Americans regard Trump as a dangerously authoritarian candidate who panders to the most deplorable of our bigots. He is, we hear so often, unfit to govern because he is lacking character, competence, and a mandate.
Much of the country is pretty hysterical (to some extent in both senses of the world) these days. More than you might think believe the tyrant Putin somehow hacked into the voting machines in the close rust-belt states. We have some reason to feel their pain, insofar as it was highly improbable that Trump would win narrowly in all three of the states of Wisconsin, Michigan, and Pennsylvania. But, you know, he didn’t need Wisconsin and Michigan, and his margin in Pennsylvania is large enough — and explicable enough — to be acknowledged by even the most obstinate of skeptics as the undeniable will of the people .If the Stein/Soros/Clinton recounts actually happen, it’s reasonable to assume, they will have the effect of securing further the legitimacy of Trump’s victory.
And here’s the truth: This time the disjunction between the popular vote and the electoral vote can be attributed to the different campaign strategies of the two candidates. Clinton’s appeal, a combination of identity politics and dissing of Trump as a dark hater “in over his head,” was national. In retrospect, its most clear effect was to secure huge — often bigger than Obama’s — margins in the relatively rich, sophisticated, and diverse states on the West Coast and in the Northeast. But she also did extremely well wherever people were flourishing as highly educated and productive members of our globalized work force.
Trump’s Kushner, meanwhile, deployed a Moneyball strategy, given his, by comparison, quite limited resources. He focused time and treasure on the key rust-belt states, hoping to flip Obama voters in rural areas and decaying towns. It was a strategy that was unlikely to work, but might, and it was Trump’s only conceivable road to victory. Following that strategy meant making no effort at all in California, New York, and so forth, letting Clinton run up the score. It’s cause for the highest form of political wonder that this strategy did work, and few were more surprised on Election Day than Trump and his people.
Bottom line: Clinton followed a popular-vote strategy, thinking that the electoral vote would take care of itself, given how many “knockout states,” such as Florida and Pennsylvania, seemed to be trending in her direction. Trump followed a purely electoral-vote strategy. Each got what he or she was mainly after.
So Trump, not lacking in confidence, seems mostly fine with thinking he got a mandate from most of the country, most of the states, counties, and so forth. He followed the rules, he won the game. And it turned out, after all, that the system wasn’t rigged. All of the respectable forms of the elite establishment were allied against him, and they couldn’t control the outcome. That is, after all, worthy of wonder too.
My fear was that a Trump victory, especially under these circumstances, would unleash uncontrollable popular convulsions on campus, in our cities, and other places where virtually no one voted for him. Well, there has been some, and every form of social media is awash with outrage. But overall things are surprisingly calm. All honor to President Obama for graciously accepting the election’s outcome and for putting what’s required for a smooth transition first.
In any case, Trump isn’t likely to be dangerously unenergetic as president because he’s psychologically enfeebled by the literal lack of a popular mandate. The danger is, in fact, he won’t come to terms with the fact he’s won the right to govern under our Constitution but doesn’t have the confident consent of a majority of the governed. It’s up to him to win that consent by governing well. How likely is that? Well, he deserves a chance.
Certainly Trump’s ridiculous tweet today that he really won the popular contest if the millions of illegal votes are deducted doesn’t inspire confidence in his magnanimity, humility, or grasp of his real situation. That tweet, however, might be best dismissed as yet another diversion meant to outrage the suckers and not a real reflection of the mind of Trump.
Now there are those who say that the electors should go rogue and deny Trump the presidency. These are exceptional circumstances: He’s obviously unfit, he’s compromised by huge conflicts of interests, and he didn’t really win the election.
It was the intention of the Framers that the electors, selected by the state legislatures on the basis of their reputations for wisdom and virtue, would be free to use their own judgment to choose among the best men in the country. That would mean that they wouldn’t choose a demagogue lacking the character or competence to rule, a populist who has risen to prominence by flattering and arousing the baser passions of the people. Well, that means they wouldn’t choose Trump. (And likely not Hillary Clinton or Bernie Sanders either.) There’s reason to be nostalgic for the Framers’ original design for the electors, although it fell apart after George Washington.
But since the electors became pledged to candidates of parties, nobody has given much thought to their wisdom and virtue. Usually just about nobody knows or cares who they are (although this time they’ve been googled and then deluged with menacing messages). Today’s electors have no mandate at all to deploy their personal judgment against the will of those who voted for them.
That doesn’t mean Congress doesn’t have the mandate to impeach Trump if he continues to think, as did Nixon, that the president as president is above the law. The possibility of impeachment, we can hope, will be one factor among many that will keep him in line. And on a more routine level, we can hope that the Republicans in Congress will finally work with Democrats to develop the legislative ambition to counteract executive ambition, as our Framers intended. Very few in Congress of either party trust Trump much, and that might turn out to be a good thing for our constitutional balance.
The content of Trump’s mandate? That’ll come next time.