The raging race to 270

Two days from now, on Nov. 3, the race to 270 of Joe Biden, 78, and Donald Trump, 74, to be America’s President for 2021-2025 will end. In fact, weeks ago, the mail-in (or absentee) ballots had started pouring in in historic numbers.

Unlike us, US voters choose the “electors,” who in turn elect their president. The presidential candidates pick their vice-presidential teammates. Thus, a vote for the presidential bet is also a vote for the teammate.

Theoretically, once elected, the “electors” may vote for any candidate. But, in practice, they choose the standard bearer of the political party to which they belong. Thus, the winning Republican electors would vote for Trump and the winning Democratic electors would vote for Biden.

The legislature of each of the 50 US states — plus the District of Columbia — determines by local law how the electors are to be chosen, but Election Day is fixed on the same day for all states: the first Tuesday after the first Monday of November. The winner takes office on Jan. 20 of the ensuing year.

Each state is allocated a number of electors in proportion to the population of each state. California, the most populous, is given 55 while the least populous, like Alaska, Montana, Wyoming, and DC, are granted three each.

All in all, the Electoral College is composed of 538 electors. To win, a candidate must obtain at least 270 votes. Most states, with the exception of Maine and Nebraska, adopt the “winner-takes-all” rule, that is, the slate capturing a plurality of the popular vote wins all the electoral votes in that state.

Normally, the winner of the nationwide popular vote also wins the electors’ majority votes. However, under this complex, indirect system of election, a candidate may capture a majority of the popular vote nationwide yet lose the electoral vote.

This happened in the 1824, 1876, 1888, 2000, and 2016 elections. In 2016, Democrat Hillary Clinton won three million more popular votes than Republican Donald Trump who, however, got more electoral votes than her, 304-227. Thus, she gamely conceded the election to him.

In 2000, Democrat Al Gore also won the popular vote but lost the electoral vote, 271-266, to Republican George W. Bush. In that very close election, the US Supreme Court, voting 5-4, rejected a manual recount of the imperfectly punched automated ballots in Florida, thereby giving Bush the winning margin in the Electoral College. Had there been a manual count, the Florida electoral votes could have gone to Gore who would have won the presidency.

The US Court’s decision was lampooned for being partisan, given that the governor of Florida was Jeb Bush (George’s brother) and that Florida’s electoral commission was headed by a Cabinet member appointed by the governor. Worse, the five justices who voted against Gore were appointed by Republican presidents and the four for Gore were named by Democrats. Despite the widespread howling, Gore humbly accepted the decision and conceded defeat.

In 2006, during my watch as CJ, Gore visited our country. In a private conversation, I asked him, “Why did you not pursue your remedies in the public fora and in the streets of America?”

His reply was quick: “Mr. Chief Justice, there is something greater than me. The survival of our democratic institutions is more important than my personal victory. The Supreme Court had spoken. Though I disagreed with its decision, I had a duty to respect and obey it. If I had protracted the battle to America’s streets and parks, there would have been chaos and political upheaval. The manual recount would have taken many months. Meanwhile, no one would have been sworn in as President that ensuing January. Can you imagine a leaderless United States?”

Rule of law at its best!

Usually, the Democratic Party wins the populous states like California and New York, while the Republican Party takes the less populous ones. Under the Electoral College system, there is theoretical parity among the states of the Union. In fact, each state regardless of population elects two senators who comprise the 100 members of the US Senate.

This “equality” of representation makes the Union “democratic” in the same way that the sovereign equality of states in the United Nations gives every member one vote. Hence, populous states like India with over one billion people are the sovereign equal of small states like Singapore with less than six million.

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