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In yet another surreal first for American politics, federal prosecutors recently signaled that former President Donald Trump may soon be criminally indicted for excesses in his attempts to snatch victory from defeat after the 2020 election — his third indictment if it comes to pass.
What the effect may be on the 2024 campaign, or the nation's mental health, from the various impending trials of Trump — whether for mishandling secret documents, hushing up the secrets of a porn star or rather openly attempting to shanghai the presidency — is anyone's guess. But the election charges raise a bigger picture concern.
They should continue to inspire careful thought about American election processes and institutions, and how well they protect our democracy from being hijacked, now or in the future, by unscrupulous manipulators of any political persuasion.
The Electoral Count Reform Act of 2022 became law last winter for this reason. The new law sensibly clarifies the merely ceremonial role of the vice president and the limited role of Congress in counting electoral votes submitted by the 50 separate states, which determine who is elected president under our Constitution. A corruption of that process was the screwball objective of some pro-Trump hooligans on Jan. 6, 2021.
Now, just in time to stimulate more thinking about how elections might be sabotaged or protected comes "Electoral College and Election Fraud," a new working paper published this month by the National Bureau of Economic Research.
Georgy Egorov of Northwestern University and Konstantin Sonin of the University of Chicago argue that "One frequently overlooked aspect of the U.S.-style electoral college system is that it discourages election fraud," providing "more effective protection ... compared to the popular vote system."
Many beneficial aspects of the Electoral College system are "frequently overlooked." In May in this space I lamented that Minnesota this year became the 16th state to enlist in the so-called National Popular Vote Compact (May 14), an ingenious but in my view misguided scheme to circumvent the Constitution and establish a de facto popular vote system for electing presidents, if enough states eventually join. I defended the Electoral College on various grounds that needn't be revisited here. But I largely "overlooked" the fraud question.
Egorov and Sonin, for their part, set aside all the other arguments for and against the College. They are careful to acknowledge that no evidence supports Trump's continuing claims of a stolen election in 2020, noting that "judges, including those appointed by Republicans, rejected 100 percent of lawsuits alleging election fraud." But they add that "election fraud that can alter election outcomes is not outside the realm of possibility in the United States ... In fact, incidences of such fraud have been documented in [state and local] elections."
The researchers note in particular two notoriously fraudulent U.S. Senate elections in Texas in the 1940s. Both involved president-to-be Lyndon Johnson, who had a Senate seat stolen from him in 1941 and stole one himself in 1948, as vividly chronicled in Robert Caro's monumental LBJ biography "The Years of Lyndon Johnson."
But despite lingering allegations of corruption in past presidential campaigns such as 1960 and 2004, Egorov and Sonin note that "the relative absence of fraud in presidential elections in the United States is indeed remarkable" while "wholesale election theft" is rampant in too many authoritarian and unstable countries.
"Very few countries around the world elect a strong executive by anything but popular vote," they add.
But what could it be about the Electoral College system that would make stealing an election more difficult? Egorov and Sonin say the "critical point" is that "under the electoral college, the states where fraudulent votes would be most valuable are also the states where it would be most difficult to obtain them."
Under the Electoral College system today, nearly every state awards all its electoral votes to the candidate who wins the popular vote within that state's boundaries. A losing campaign, no matter how devious, can't hope to alter the outcome in states where it lost by a wide margin. And it has nothing to gain by increasing its margin in the states where it won — it's already collected all the electoral votes from those states.
So the only hope for a campaign hoping to corruptly flip the result of a presidential race under the Electoral College is to change the outcome in "swing states" where it lost by a slim margin. But the trouble with stealing an election in a closely divided state is that it is ... closely divided ... with lots of prying eyes from the opposing party in position to stop you.
"Consider, hypothetically," write the researchers, "what President Trump [would have needed to do] to change the outcome of the election he lost in 2020. In the states that he lost closely — Arizona, Wisconsin and Georgia — his opponents had a significant representation at all levels of government such as the state Supreme Courts, the ... state legislatures, and the states' congressional delegations. Thus, organizing fraud sufficient to swing the outcome in these states with the expectation that election supervisors, prosecutors and judges would turn a blind eye [was] extremely challenging. ... "
As Trump learned, in competitive states even officials of one's own party are skittish for fear of endangering their own positions.
In friendly, deep-red states — Texas, Alabama, etc. — dishonestly running up vote totals might have been easier for Trump. But "it would be pointless under the Electoral College system," Egorov and Sonin write.
Under a national popular vote system, by contrast, piling up votes in partisan strongholds would not be pointless. The coast-to-cost aggregate vote totals would be decisive in that system, without regard to the outcomes within states.
And localized mischief, which would remain comparatively easy in districts solidly controlled by one party, would still have clout. Egorov and Sonin note that "the National Popular Vote Interstate Compact would retain local counting and enforcement even while implementing the [nationwide] popular vote."
The researchers create an elaborate mathematical model to test their intuitive argument that the Electoral College system is harder to manipulate than a popular vote system would be. But even those who, like me, can't penetrate the math may be able to see that there is something worth thinking about here.
Modern Americans take for granted almost every virtue of the political order within which they live, including that we never actually have had a presidential election stolen. Egorov and Sonin, if nothing else, challenge us to wonder why we've been so lucky.
