New Delhi: President Donald Trump has recently shocked many Democrats and puzzled foreigners abroad by challenging the legitimacy of the results declared by the media on the Presidential election held on 3 November.

How effective that challenge will be, will depend partly on the machinations of the “Deep State” in the United States. For the Deep State, Trump is a rogue and not one of “them”. Hence a massive debasement and caricaturing of Trump is presently on in the mainstream media in the US.

But Trump has stumped the Deep State establishment by polling at least 71 million votes. The so-called “landslide victory” forecast by the same media for Biden as US President has been exposed as mere propaganda.

Trump may well be on his way out of the White House, but the widely predicted “Blue [Democratic] wave” has not materialised. The “landslide” victory for Biden, it turns out, was a media mirage. The Democratic Party’s hope of gaining control of the Senate has all but evaporated. The attempt by the Democratic Party to paint Trump as a fascist and hater of “People of Colour” [African Americans, Latinos, and Asian-Americans] as “undesirables” for visas failed to get any traction.

Hispanic voters in Florida’s Miami-Dade County were key to Trump’s victory in the state. A tele poll before the election found that 71% of Cuban-Americans in the “Sunshine State” voted for Trump. In Zapata County, located on the US-Mexico border with a heavily Hispanic population, Trump’s vote surged from 33% in 2016 to 52% in 2020. Trump’s impressive growth in Hispanic support included both middle-class Cuban-Americans in Florida and working-class Mexican-Americans on the southern border.

As Dr Rakib Ehsan, a Research Fellow at Henry Jackson Society has noted, that surprisingly, Trump, who had been accused of being “a racist and a white-supremacist sympathizer”, secured the highest Republican share of non-white voters in a presidential election since 1960.

Clearly, calling President Trump a racist was not enough to persuade many minority Americans to vote for the Democrats. Even if Biden wins, Trump will have broadened the Republicans’ support of minorities far wider than many could have imagined.

Trump has also been depicted by some as an Islamophobe, especially because of his travel ban which included Muslim-majority countries such as Iran, Libya and Somalia. The British Muslim mayor of London, Sadiq Khan had established himself as one of Trump’s higher-profile critics outside the US. Khan alleged that Trump was part of the growing global threat of the “far right”. Yet Trump polled at 35% among this section of the US electorate. To put this in perspective, this figure exceeded support for Trump among Jews (30%) and voters of “no religion” (25%).

The question now is whether Trump has any hope of overturning Biden’s claimed but narrow victory, by legal means including approaching the Supreme Court. His success in this endeavour may not be of any significant probability, but Trump’s challenge to the November election result is feasible under the US Constitution.

In US Presidential Elections, every four years Americans go to the polls and cast their votes among usually three or four candidates. But the race is mainly between two: Republican and Democrat candidates. Non-US watchers abroad think that the American voters actually ballot for one of the candidates, and that the candidate with the most votes, usually majority if it is only between two main candidates, becomes the US President. But in actuality that is not so.

That is, this is not really how American Presidential election is structured. President’s election in US is actually indirect, that is, it is a two-stage election. US citizens in effect vote for States to determine 538 Electors, and these Electors by majority [270 or more votes] decide the President. Constitutionally, it is not binding that the Electors will choose the candidate with the most public vote.

The United States of America is governed by a Federal Constitution, which provides for choosing the President not by the popular vote but by the majority of a constituted Electoral College of 538 electors. In the 3 November 2020 election, the candidate who gets 270 or more Elector votes is declared President [on 6 January 2021 by the US Congress called to session]. Oath taking ceremony for the President-Elect will be held on 20 January 2021 for a four-year term beginning on that date.

This latter election—the real presidential election by the Electoral College—determines the identity of the President of the United States, and not the public vote polled last November. The examples of winning the US President’s post without majority of the people’s vote are many since US ceased to be a colony of Britain in 1776. The most recent is of the 2016 Donald Trump vs Hillary Clinton Presidential election. Clinton won the popular vote convincingly, but Trump won the Electoral College vote as convincingly and became President of US.

Electors are chosen by each of the State Legislatures, which are called State House of Representatives. Theoretically, if it is a Republican majority House, then all Electors can be Republicans chosen by the party. But there is a convention that the Electors are in proportion to the Candidate’s vote cast by the State’s voters in the Presidential Elections. The US Constitution provides the boundaries for the appointment of these electors.

In the US Constitution, Article II, Section 1, Clause 2, states:

“Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators [two per state] and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States law, shall be appointed an Elector.”

On the November Election Day are designated representatives, called Electors, whose sole duty is to represent their States in a subsequent election among the Electors for the President.

The Constitution provides that each state is to decide, for itself, how its electors will be chosen. During the first US presidential election ever, states relied upon a wide range of methods. Several state legislatures appointed electors directly, on behalf of their citizens. No presidential election, as we think of it, was ever held in those states. Other states relied upon popular votes, but in different ways. For instance, Maryland directed that certain numbers of electors were to be elected from designated parts of the state. Virginia created 12 districts specifically for the election of electors; these districts were separate from the ten districts created for the election of Congressmen.

Today, every state relies in nominating the Electors, a total national Electors of 538, upon a popular election among its own citizens. Most states then allocate their Electors in a winner-take-all fashion based upon the outcome of these elections. So, for instance, when a majority of Californians expressed their preference for Obama in 2008, these votes were translated into votes for a slate of 55 Democratic Electors. If John McCain had won the election, an alternate slate of 55 Republican Electors, committed to McCain, would have been appointed to represent California instead. The state’s authority to choose its own method for appointing Electors is not in doubt. However, a few other issues remain unresolved:

First, Congress may step in if there is controversy regarding which of two slates of Electors rightfully represents a state. US Congress has taken such action in the past, on the authority of the Electoral Count Act of 1887 and subsequent measures. However, some US scholars argue that such federal laws impinge on the states’ authority, as outlined in Article II, Section 1, Clause 2.

Second, is a state’s discretion truly unlimited? US Supreme Court Justice Thomas once observed, “States may establish qualifications for their delegates to the Electoral College, as long as those qualifications pass muster under other constitutional provisions.” No one has challenged this Electoral College system in the Supreme Court of US so far. There is however a growing movement in US by an organization called National Popular Vote Movement.

Another open question is regarding the meaning of the word “Legislature” in Article II, Section 1, Clause 2. Does this use of “Legislature” refer specifically to the lawmaking body or does it refer to a state’s entire lawmaking process? If the latter, then the Legislature and Governor must act together to determine the manner for appointing electors. Voter referendums if permitted would to trump the legislature in such circumstances. The Supreme Court has not addressed the question, but it has come down on both sides of the issue in other contexts, obliquely.

States are allocated one Elector for each Representative in Congress— i.e., two Senators and member elected to House of Representatives. Each state therefore automatically receives two votes, for each State has two Senators, irrespective of population one each for a Representative in the Congress. Puerto Rico and the Island Areas are not given Electors, as they are not states. The District of Columbia did not initially receive Elector votes because it is not a state; however, adoption of the 23rd Amendment in 1961 provided it with at least three electoral votes. But no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Why this complicated procedure to elect the President?

Some US scholars believe that Electors were meant to independently deliberate: The Founding Fathers wanted a body of wise men, entrusted with the power to select the President at a time when communication was slow and unreliable.

Other scholars maintain that the role of elector was created only because the delegates to the Constitutional Convention left it to states to determine how their electors were to be chosen. Either way, creation of an independent electoral body was thought to provide special benefits in the presidential selection process, and States’ rights.

In Federalist No. 68, Alexander Hamilton wrote that the election process should minimise the opportunity for “cabal, intrigue, and corruption” in the selection of the President. Article II, he believed, accomplished this.

Electors could not be bribed or corrupted, wrote Hamilton, because their identities would not be known in advance. Presidents would not be indebted to (potentially biased) legislators for their elections, thus reinforcing the separation among the branches of government.

Separating the meetings of the Electors (one in each state) would make these individuals less susceptible to a mob mentality. Finally, the selection of Electors was tied to the people of a state, reminding the President that he owed his office and his duty to the people themselves.

Some of Hamilton’s logic has perhaps become less applicable, given the advent of mass communication and decreasing expectations that electors are to independently deliberate.

But the state-by-state presidential election system created by Article II continues to provide many benefits for a country as large and diverse as America.

The White House can only be won by a candidate who wins simultaneous victories across many states; thus, candidates must appeal to a broad range of voters in order to succeed.

Successful candidates bring a diverse citizenry together, building national coalitions that span regional and state lines. Such a system is as healthy now as it was in 1787. For further insights, readers may peruse the book authored by Dr Tara Ross: Enlightened Democracy: The Case for the Electoral College.

TRUMP’S LEGACY

Whether Trump finally loses or not, his legacy will be that he helped pave the way towards a patriotic multi-racial conservatism—a far cry from the exclusionary white nationalism he has often been accused of by CNN. This Trumpian Agenda, which has garnered support in a diversity of ethnic groups, is based on fiercely anti-socialist sentiments, economic patriotism, robust border security, appreciation of faith, traditional social structures and support for the police. Hence, the American “left”, whom I know from personal experience at Harvard as the most anti-free speech and comparable to Vladimir Putin, are fiercely against Trump.

All of this raises serious questions for the Democrats and the left. A supposedly racist Republican President, who they loathe with a passion, has managed to develop forms of non-white support which clearly demonstrate that demographic change does not automatically translate into Democratic success at the ballot box. It has an interesting parallel with Hindutva and Muslim and other minorities’ adherence to BJP.

That means already 2024 is within reach for Trump, if not now.

Dr Subramanian Swamy is an MP nominated by the President for his eminence as an economist. He is a former Union Cabinet Minister for Commerce and Law & Justice.