SINGAPORE: Joe Biden will trounce Donald Trump by millions of votes for President this year.
Yet, Trump may get a second term because the winner of the popular vote does not determine the outcome of the election. What ultimately determines the outcome occurs weeks later when the Electoral College process concludes.
Five times before, the loser of the popular vote went on to become President due to this unique and increasingly antiquated system. One of those times, a candidate won an outright majority and still did not become president.
Biden could become the second person to win more than 50 per cent of the votes cast and still “lose”.
In 1876, with the country still recovering from the Civil War and the election outcome having the potential to re-open still unhealed divisions, the person with the majority votes conceded the Presidency, though it came at the cost of starting the infamous Jim Crow era which enforced racial segregation in the South.
When asked last week what would happen on election night 2020 if he were declared the winner and there were riots, Trump vowed violence.
“Look, it's called insurrection. We just send in, and we do it very easy. I mean, it's very easy. I'd rather not do that because there's no reason for it, but if we had to, we'd do that and put it down within minutes. Within minutes,” he promised.
BIDEN 2020 A STRONGER OPPONENT THAN CLINTON 2016
In 2016, Hillary Clinton won the popular vote by a margin of 48.2 per cent to 46.1 per cent, garnering 2.86 million more votes than Trump.
In 2020, Biden will have a larger victory because he will win by more votes than Clinton in traditional Democratic states in the Northeast and on the West Coast where Trump’s stock has fallen further among a large majority of voters than four years ago.
In New York - which the President had listed as his primary state of residence until last year when he switched it to Florida - the latest polls have Biden leading by 31 points, 10 more than Hillary won by the last time.
In California, while Clinton won by 28 points, the latest polls have Biden up by 39, or roughly two million votes.
Also, choosing Kamala Harris as his running mate will do a great deal more to turn out the more than 4 million Barack Obama voters who stayed at home in 2016, especially ethnic minority voters.
At the same time, in many Republican states, Biden will be a good loser.
Clinton had very high, long-standing negative rankings in many red states for a myriad of reasons. Biden does not.
This time, when Trump carries red states, more independents and moderate Republicans who would not vote for Clinton will vote for Biden, or maybe stay home, shrinking Trump’s margin.
For example, while Texas will almost certainly remain in Trump’s column overall, Biden will lose by much less there. In 2016, Trump carried the Lone Star state by 9 points. The latest poll has him up by just a few points.
When all the votes are counted nationally, expect Biden to win by more than double Clinton’s margin and corresponding popular vote total.
But the national vote in and of itself does not matter.
SMALLER STATES HAVE OUTSIZED POWER IN CHOOSING THE PRESIDENT
As the nation’s founders debated how the United States should be governed, three general principles were followed.
As a rule, only white men, and in many states only those who owned property, could vote.
Smaller states needed to be protected from having the presidency determined by the larger ones.
States should each choose “electors” to vote for President as opposed to having a direct election by the people.
The Constitution established the Electoral College in which each state has a number of "electors" based on its proportion of the population, plus two additional electors to add weight for the smaller states, to determine who wins the presidential election.
While there have been changes to the constitution, the core principle that smaller states have greater influence than their population alone dictates, in selecting the president, remains intact.
Today, there are 538 members of the electoral college with an absolute majority of 270 electoral votes needed to win the presidential election.
The US presidential election actually comprises 51 separate elections - the 50 states plus the District of Columbia - with each voting to elect their “electors” on Election Day, this year on Nov 3.
These electors then meet in each state to cast their votes. This year, that occurs on Dec 14.
On Jan 6, 2021, two months after the popular vote, Congress counts the electoral votes and declares a winner.
Only then does the constitutional process determine who will be sworn-in on Inauguration Day. Formal declaration of the winner does not occur on election night.
THREE LIKELY ELECTION NIGHT OUTCOMES
Presuming Biden wins by at least a five-point margin, his lead now holds at 7.5 per cent, he would more than double Clinton’s nearly 3 million vote victory in the popular vote last time, three scenarios await.
Such a large margin nationally could correspond with a Biden a victory in the Electoral College with his taking back more traditional blue states such as Michigan, Pennsylvania and Wisconsin, plus picking-up swing states such as Florida and North Carolina.
Or, with Trump losing by an even larger margin in core blue states such as California and New York coupled with a narrow win in Texas, and again eking out victories with razor-thin margins in places like Michigan and Wisconsin, he would earn a second clear Electoral College win even while losing by a much greater vote count overall.
That scenario remains very much in play. Despite COVID-19, during one week in August alone the Trump campaign knocked on 1 million doors to turn out and deepen his base. In contrast, the Biden campaign knocked on none. The Trump campaign executes on their strategy despite the public health implications.
The coronavirus contest could result in a third scenario. Trump could declare victory based on the in-person vote counts announced on election night if he were ahead, a plausible scenario given the majority of in-person votes could be from Republicans given Democrats are heeding the call to vote by mail.
Trump campaign lawyers will undoubtedly mount vigorous challenges in key states that will dwarf efforts to question mail and absentee ballots as happened during the Florida 2000 recount, an effort which ended-up with the Supreme Court in effect determining the outcome of the election weeks later.
THE UGLIEST, MOST CONTENTIOUS ELECTION EVER
If Biden wins by such a clear margin in the Electoral College by taking back the traditional blue states lost by Clinton and also winning Arizona, Florida and North Carolina, his victory should be accepted, regardless of what Trump says or does.
Or, with Biden winning by as many as 10 million votes and a national majority, but Trump again getting enough electoral college votes to be re-elected after all the votes are counted, protests are expected but would likely be muted.
On the other hand, if Trump declares a premature victory on election night if it were then clear Biden would win with a count over the next few days of all the ballots cast and received by mail, mass protests and demonstrations would likely ensue.
This scenario could result in the most significant constitutional crisis facing the country in nearly 150 years, with supporters of each side taking to the streets claiming the other were trying to steal the election.
For now, each side does all it can to make sure it does not come to that by trying to win outright on election day. In particular, the Biden campaign wants a turnout so large his vote totals perform outside the “margin of lawyers”.
Historians refer to the election of 1876, the last time the person with an outright majority of votes did not become President, as “the ugliest, most contentious presidential election ever”.
Let’s hope it stays that way.
Steven R Okun and Thurgood Marshall Jr served in the Clinton administration as Deputy General Counsel at the Department of Transportation and White House Cabinet Secretary, respectively. Mr Okun serves as senior adviser for global strategic consultancy McLarty Associates in Singapore. Mr Marshall practices law in Washington.