Current legal issues

Hamed Jendoubi, « The Day Before: The 2020 US Presidential Election, Constitutional Context and Institutional Implications »

Centre MELUN, 2 novembre 2020, 10H à 12 H, Amphithéâtre Abélard

The conference was recorded less than 24h before the D-day. There are four different candidates:

• Donald Trump for the Republican Party
• Joe Biden for the Democratic Party
• Jo Jorgensen for the Libertarian Party
• Howie Hawkins for the Green Party
• (Kanye West)

Only Trump and Biden have a real chance to win the elections.

I. Constitutional context

The process of the American presidential elections is explained by the American Constitution of 1787 wrote by the Founding Fathers (conversely other big Western democracies adopted theirs after WWII). The president is not elected by the majority of the people like in France. Americans use an indirect electoral system that uses the people and the States.

A. The Particularities of the American electoral system

The system used to elect the US president is described in article 2, section 1 of the US Constitution. Article 2 is about the Executive Power and section 1 describes how the President and the Vice President of the US are supposed to be elected :

Date of the election : The American presidential elections take place every 4 years, on the 1st Tuesday following the 1st Monday of November.

Conditions to be a candidate:

• Minimum age of 30 years old
• Obligation to be born in the US (immigrants or naturalized citizens can’t be president)
• Obligation to have lived in the US for at least 14 years

B. The Electoral College system : how is the president elected ?

The American president is not elected directly by the people but indirectly by the Great Electors. Each State is given a certain number of Great Electors. Those Great Electors elect the President. The people in the State do not vote for the Electors but for a candidate. Then, the candidate who earns a majority of the votes of the people of a State wins the Great electors of that State who then vote for him. Finally, the candidate who wins the majority of the votes of the electoral college becomes president.

The total number of Great electors is 538. This number represents the total number of representatives of each States in the House of Representatives + the 2 Senators of each States + the 3 electoral votes given to Washington DC by the 23d Amendment of the Constitution. You need an absolute majority of the electoral college votes (270) to become president.

The Founding Fathers of the Constitution chose in 1787 an indirect voting system over a direct voting system because the USA were initially confederation of States. The States are represented in Congress and need to be evolved in the election of the President

Example using California (the most populated State : more than 14M inhabitants) and Wyoming (the least populated State : less than 6M inhabitants):

California has 68 times the population of Wyoming. If the election was a direct popular vote, like in France, California would have 68 times the power of Wyoming to determine the identity of the president. With the electoral college, California only have 18 times the power of Wyoming during the presidential elections. California has 65 electoral votes and Wyoming has 3 (almost 4 times more powerful with this system).

II. Electoral context

A. The political context

This election happens in the most agitated period of the recent American history (different from 9/11 where it was also agitated but where the country was united). Nowadays, the country is more divided as it ever been, maybe since the end of the Civil war. After 9/11 the only factor of agitation was terrorism.

Currently, there are at least 3 factors of agitations :  the Coronavirus pandemic, the economic crisis that came as a consequence and the racial tensions following the death of George Floyd.

Finally, the last difference between 9/11 and the current period is that 9/11 was an event where the enemy came from outside (it was foreign terrorist who took down the World trade Centre and killed thousands of people). Nowadays, Americans see each other as a potential enemy (for contagion, security (police) and democracy (white fascist dictatorship v. socialist dictatorship).

B. The polls and predictions of the result :

The problem of predicting the results based on polls is because the elections is an indirect one, you need to look at two different sets of polls  : national polls (the % of American citizens in the entire country who will vote for Trump or Biden) and then State by State polls to understand where the vote of the Great Electors will go. Biden consistently took the lead for the national polls for months (9 to 11 advantage for Biden).  However, in the US these polls are less important than the State by State polls to determine the winner because even if a majority of American citizens vote for someone, they can still lose the election like it happen to Hillary Clinton in 2016.

Some states are ultra-predictable (they are the Red States like Alabama and Mississippi and the Blue States like California and New York) and you don’t need polls to predict their results. We need to focus on the Swing States or Purple States to predict the be able to predict the result of an election like Pennsylvania or Florida.

In 2016, Trump became president because he won 5 Swing States : Wisconsin, Michigan, Pennsylvania, Ohio and Florida. These States had voted consistently for the Democratic Party for a pretty long time and all voted for Trump in 2016. These 5 States combined count for 93 electoral votes. Trump won the election by 77 votes. Those 5 States decided of the result in 2016.

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