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The people will be heard / October 28, 2020
As we head into Election Day next Tuesday, it’s worth noting that if America chose popularly-elected presidents — that is, the candidate receiving the most votes — this race would effectively be over and Joe Biden would be our presumptive President-elect. No one seriously doubts that America will cast more votes for the Democratic nominee than for the Republican incumbent in 2020. Why do we know this? Because (A), Donald Trump is fundamentally unpopular — the reason he’s likely to lose the race anyway, under our Electoral College system for selecting presidents — and (B), because history tells us it is so.

In six of the past seven presidential elections, Democratic candidates have received more votes than their Republican counterparts. Only in 2004, when George W. Bush received a majority of votes against Democratic challenger John Kerry, has the Republican Party staked a clean claim to the White House. (One could argue this outcome, too, was the result of Bush’s incumbency, achieved on a minority vote victory in the contentious 2000 presidential race against Al Gore.) Prior to the 21st Century, the United States handed the presidency to the popular vote loser only three times: John Quincy Adams in 1824, Rutherford B. Hayes in 1876 (the election that ended Reconstruction and unleashed the evils of Jim Crow and unchecked racial oppression in the South) and Benjamin Harrison in 1888. America went more than a century without a popular vote loser holding the presidency, with Democrats and Republicans swapping control of the White House over that time.

The seven most recent presidential elections date back to 1992, when Bill Clinton defeated George H.W. Bush to deny the Republican incumbent a second term. Since that time, we’ve had two Democratic presidents — Clinton and Barack Obama, each winning two terms — and two Republican presidents, Bush II and Trump. As noted, the second Bush won twice, first in 2000 despite losing the popular vote by half a million ballots, then again in 2004 by running as a wartime president in the aftermath of 9/11. Trump lost by nearly three million votes in 2016, but snuck into office by running an Electoral College inside straight with victories in Pennsylvania, Michigan and Wisconsin, collectively receiving 80,000 more votes in the three Rust Belt states. (“More people were in attendance as the Ohio State Buckeyes beat a high school football team in Columbus last weekend,” The Washington Post noted archly at the time, referring to the Nov. 5, 2016 beatdown of Nebraska, 62-3, at the OSU campus stadium.)

If Trump somehow manages to win next week’s race, the 21st Century will have produced three presidential administrations led by the popular vote loser, thereby matching the prior total of 232 years of American history. With eight more decades left to go in the century. Think about that.

Can Trump pull out a surprise victory? The polls say it’s doubtful, although no one should put too much too much trust in polling numbers after Trump’s upset win in 2016. Nonetheless, it looks as though the non-stop horrors of the Trump Administration — the incessant lying, corruption, cruelty and incompetence, culminating in the preventable deaths of tens of thousands of Americans in the coronavirus pandemic — are finally catching up to the most unfit-for-command chief executive in American history. Truth be told, ever since Trump took office, the backlash from the majority of the American public has been severe, manifesting in virtually every corner of the country. Republicans lost control of the House of Representatives in a mid-term wave election of 2018, and the party’s majority in the U.S. Senate hangs by a thread this Election Day. Republicans suffered off-year losses in gubernatorial and statehouse races around the country — Louisiana, Kentucky, Kansas and Pennsylvania come immediately to mind, to say nothing of the wipeout suffered by Virginia Republicans in 2019 — and revulsion toward Trump played a significant role in each of these outcomes. Despite the dithering in the ranks of Democratic elected officialdom, and a chronic case of both-siderism and whataboutism in the national press, the bill for the Trump presidency is coming due, based on the likely outcome of Tuesday’s vote.

Should Trump hang on, it’ll no doubt be in large part because of judicial interventions that are already taking tangible form. This week, the U.S. Supreme Court issued a disgraceful ruling that bars Wisconsin from counting ballots that arrive after the election, despite bearing a postmark on or before Election Day. (In Virginia, mail-in ballots postmarked by Election Day will be counted up to three days later, with a cutoff for ballots to arrive by Friday, Nov. 6 at noon.)

Also this week, Trump nominee Amy Coney Barrett was sworn onto the Supreme Court, filling the seat that opened with the death of Ruth Bader Ginsberg, one of our great advocates for equality and the rights of all citizens (and voters) to participate fully in American society. Barrett’s confirmation gives the Court a stridently conservative 6-3 majority, with three of those justices nominated by popular vote loser Trump. (Two other members of the Court, Chief Justice John Roberts and Associate Justice Samuel Alito, were appointed by Bush in his second term, after he won with a minority of the vote the first go-round.) During her Senate confirmation hearings, Barrett gave weasely replies whenever asked if she would recuse herself from post-election legal challenges that could determine the next president if the election is close. She also refused to state her positions when asked about provisions for the peaceful transfer of power and the rights of citizens to vote free of outside intimidation, despite the clear text of the law, both Constitutional and statutory, that guarantees these fundamental rights. Her installation on the Court, aside from being a naked power grab, rightfully stirs unease over what may come next.

None of these obstacles to the popular will are strong enough to determine who our next president will be if Biden scores a clear-cut win next week. (Individually, people can do their part to foil electoral machinations by voting early, or showing up in person to vote on Election Day.) Aside from the fact that minoritarian presidencies undermine the basic premise of American democracy — government of the people, by the people, and for the people — the recent string of these inherently unpopular Republican presidencies has saddled the country with a Supreme Court that is not remotely reflective of the country’s political opinion writ large. Not now, and especially not in the future as generational change takes the country in new (and hopefully welcome) directions. The idea that the Supreme Court can stand athwart history, yelling “stop” at progressive change, has no precedent in American history. None. The true test of judicial legitimacy is not in the appointment process — gross as that has been in recent years — but in the sweep and scope of its jurisprudence, which rightfully should fit the broad direction of the country. An out-of-step conservative majority on the Court can exercise due restraint in its judicial rulings, or it can stand by as others do it for them.

Some time ago, a good friend of mine, a Republican, lamented the inability of Americans to achieve “unity” in our politics. Unity is indeed a powerful concept worth fighting for. But it’s something we have to be realistic about: people are never going to agree about everything, nor should they. We are destined to fight battles over various issues, because each of us has different belief systems and opinions and that’s the beauty of democracy, if not life itself. (How boring things would be if we all agreed about everything.) But if we can’t always see eye-to-eye on the specifics, we should be unified behind the idea that there is a right way to negotiate and compromise for the betterment of all. The essence of self-rule is that the majority makes the decisions, and the minority’s rights are respected.

The stacked deck of American democracy — with Donald Trump trashing all norms to maintain his misrule in Washington, with institutions like the Electoral College propping up this entire travesty, and now a dangerously lopsided Supreme Court hostile to the right to vote itself — has created a potential legitimacy crisis that hangs over this election like a loaded gun. The threat can be disarmed simply enough next week, but the consequences of these political imbalances are sure to linger. When the rules of the game break down, a free-for-all will ensue.

That’s really what the Trump presidency has meant for the country — inflicting daily outrages against the popular will and indeed, our conception of what America is supposed to be and supposed to stand for. The only way, unfortunately, to restore legitimacy to our politics is through the assertion of power by the wronged party once it retakes office: tit-for-tat. One wishes this were not so, but one doesn’t always get what one wishes for. When Mitch McConnell and Donald Trump and various others made the decision to shelve all principle, sense of compromise and respect for popular opinion in their pursuit of unchecked political power, they should have remembered the sage advice: Be careful what you wish for.

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