The 2020 US election reflects, and will not resolve, the ongoing crisis of the US constitutional order. While there are still votes to be counted, it is now highly likely that they will yield an electoral college victory for Joe Biden (who leads by over 4 million votes in the institutionally irrelevant nationwide count, a figure that will probably grow to around 6 million once California’s tally is completed). Whether Biden will take office in January 2020 is less certain. The choice of the voters might be thwarted in at least two ways. The first is via court decisions rejecting the admission of certain votes to the count in crucial states. Should a case or cases with sufficient impact to tip the election to Trump reach the Supreme Court, that Court, with a 6-3 Republican majority, will almost certainly decide in Trump’s favour. So far, no likely vehicle for such a challenge to the results has emerged, but the Trump campaign is actively seeking one. A second possibility is that individual state legislatures with Republican majorities will disregard the preferences of the majority of their voters and appoint Trump-supporting delegates to the electoral college. The Constitution reserves to state legislatures the right to specify how these delegates are selected, and all have chosen to do so via popular vote. Whether a decision to change procedure and disregard that vote after it has taken place would be constitutionally permissible is disputed, but the Supreme Court as the ultimate arbiter of constitutionality would again likely favour Trump. [UPDATE: This prospect seems to be quite unrealistic under the legislation regulating disputes over electors.] A period of social upheaval, including massive protests and counter-protests with significant potential for violence, could well accompany the legal jousting involved and continue after a Supreme Court decision. Despite this prospect, Trump and some close allies are clearly presently willing to pursue either or both of these paths to a second term, and the potential that they will do so successfully cannot be discounted.
In a broader context, this degree of uncertainty exists because the Constitution, despite amendment, retains the imprint of its late 18th century creation. Its crafters sought to cement a coalition between two groups intent on protecting their property interests from possible democratic revision. One consisted of Northern monied interests, including creditors due money from governments and individuals. The second consisted of Southern agriculturalists reliant on enslaved labourers. For these groups, the Constitution contained both direct guarantees (such as the provision that the import of enslaved people would not be prohibited for at least 20 years, or the ban on states’ use of paper money) and more implicit ones designed to constrain popular influence. These implicit guarantees included the constitution’s counter-majoritarian features, such as the cumbersome amendment procedures, the separation of powers, the bicameral legislature with differentially timed elections and an unrepresentative Senate, the independent judiciary, and the electoral college system for electing the president. That these counter-majoritarian features came to seem something more than walls around property and slavery is down to their eloquent and sincere defence by the Federalists, for whom they also represented a bulwark against tyrannical majorities deaf to legitimate minority concerns, security against ill-considered upheavals in legislation, and a means to organise a national government capable of acting consistently over time on behalf of the evolving purposes of the (initially exclusively white and male) electorate.
In the 21st century, these procedural defences of the Constitution’s frustration of majorities ring increasingly hollow. They have become simply weapons in a partisan battle. It may be that the next phase of this battle takes an acute form that returns Trump to the White House despite the will of national and state electorates. Alternatively, if Biden does take office, the issue will be whether the partisan battle returns to its more usual form of the Senate (which allocates 82 seats to representatives of less than half the population) and the Senate-shaped judiciary obstructing policies supported by a President and House of Representatives with a deeper popular mandate. Control of the Senate is likely to turn on whether the Democrats can win January run-off elections for Georgia’s two Senate seats (which would give them 50 seats and control due to the tie-breaking vote of the Vice President). The extraordinarily intense social and political conflict that will wrack Georgia, home to around 3.5% of the country’s voters, in the weeks to come will be testimony to the continuing legacy of the exclusionary politics of the 18th century.
