The Choice

Elections are, fundamentally, about making public choices. What are the choices that face Americans? In November 2024 the United States will elect a President, the full House of Representatives, and one-third of the Senate. The outlook is not rosy.

The American presidential election campaign is excruciatingly long. Trump announced his re-election bid in November 2023, the first (Trump-less) Republican presidential debate was held in August 2023, and still the actual Presidential election is nine months ahead. But the choice American voters will face in November has already been known for months: former President Donald Trump will face current president Joe Biden. This inevitable repeat match-up is unfortunate, given that most Americans tell pollsters that they don’t like either candidate.

The method of selecting the President that has evolved (more about that later) makes it almost impossible to put forward better choices. A sudden illness, or felony conviction, could disrupt the 2024 rematch-but the months of primary elections will have no impact. President Biden has only token opposition in the Democratic primaries. All of Trump’s opponents but Nikki Haley, dropped out of the race before most primary elections are held, making the actual voters irrelevant in the nomination contests. (Haley and Democrat Dean Phillips dropped out after Super Tuesday, leaving states selecting half the delegates with completely uncontested races.)

The endless presidential campaign is expensive. In 2020 the presidential candidates collectively spent $4.1 billion. Those using the Democratic Party label spent $3.2 billion (Michael Bloomberg and President Biden each spent $1.1 billion), Republicans spent $828 million (all but $20 million for Trump), and $75 million was spent by those using other labels (including $50 million by the Libertarian nominee and $13 million by Kanye West).

Despite the millions of words that are written about the contest and the billions of dollars expended, in the real election in November most voters will still be irrelevant, other than the few who live in the six swing states.

The “System” for Nominating Presidential Candidates

Once upon a time America had mass political parties that selected candidates via the caucus-convention system: local party members would assemble to elect delegates to a convention, and then the convention would select the party nominees. This system became obsolete with the advent of state laws requiring parties to select nominees through government-run party primaries. It persisted at the presidential level, because there is no national election for the president, only for presidential electors. Therefore for decades after candidates for all other Federal offices were chosen in state-run primaries, the national convention still served the key role in selecting the nominee. Since 1972, the two parties have come to use primary elections almost exclusively to select convention delegates. (I have previously written about the problems of presidential primaries and how they might be mitigated.)

The new system is an unhappy combination of varying state and political party rules. This dichotomy was apparent in 2024: the Democratic Party decreed that the New Hampshire primary election would be held on February 6, after the South Carolina primary, but the New Hampshire Secretary of State set the date as January 23, in compliance with a state law that requires the New Hampshire primary to be held at least a week before any similar election in any other state.The Democrats will not seat any delegates based on these election results. Nevertheless, a dozen candidates appeared on the Democratic ballot-but not Biden, in support of the party’s requirement for a later New Hampshire primary. Despite this, prominent Democrats encouraged votes for Biden as a write-in candidate, correctly recognizing that the publicity around the “first in the nation” primary is valuable, even if the votes are not counted for delegate selection.

New Candidates Need not Apply

Democratic Candidates

Even though polls show that a generic Democratic candidate garners more support against Trump than President Biden, his challengers in the primaries have negligible support. Voters and funders understandably will only choose a presidential candidate who is qualified by virtue of previous high Federal or state office or who otherwise has substantial funding and name recognition. In 2020 when there was no incumbent, the field of Democratic Party candidates included eight Senators, seven Representatives, four Governors, and two billionaires. In our system of electing the president, individuals are personally responsible for raising and spending hundreds of millions of dollars and must be willing to campaign for as many as two years. Given that it is almost impossible to beat an incumbent president in a nomination contest, and the attempt could be seen as harmful to the incumbent’s chances in the real election, no well-qualified candidates try.

The sole exception is Dean Phillips, who is a qualified candidate as one of the wealthiest members of the House of Representatives. His quixotic campaign for the Democratic nomination initially focused on New Hampshire. Biden won handily as a write-in candidate and Phillips did not manage to get more than 20% of the vote. Phillips failed to get even 2% of the vote in the South Carolina primary, and lacking funds, laid off much of his staff, but promised to stay in the race.

Four state Democratic Parties have refused to include Rep. Phillips on the primary ballot. Three of these will hold the primary election with only one candidate, while Florida has already declared Biden to be the winner. States have inconsistent and often arbitrary rules about who qualifies for the primary election ballot. In Wisconsin, the state Elections Commission is required by law to consider if a “candidacy is generally advocated or recognized in the national news media throughout the United States” when determining who is eligible to be automatically listed on the ballot but instead the commission accepted the list of candidates submitted by the Democratic Party (Biden only). The Wisconsin Supreme Court overruled this decision. Otherwise, Phillips would have had to use the separate and unequal method that Wisconsin requires for independent and new party candidates: collect 1,000 valid signatures in each of eight congressional districts within four weeks in January (at an estimated cost of $300,000).

Given Biden’s flagging poll numbers amid voter concern about his advanced age, several pundits including anti-Trump conservative Ross Douthat and liberal Ezra Klein have suggested that he should be replaced. Under current Democratic Party procedures, it would be virtually impossible to replace Biden without his consent. It is too late for additional candidates to be listed on primary election ballots. Elected convention delegates, according to party rules, are “pledged to a presidential candidate” and “shall in all good conscience reflect the sentiments of those who elected them.” Klein and Douthat both suggest that Biden should be convinced to voluntarily step aside, and then the convention should pick a successor. Convention delegates are intended to pick the candidate, but have not done so in the living memory of all but a handful of voters. Any nominee who did not go through the primary process could be considered illegitimate.

Republican Candidates

While Biden used his control of the Democratic Party to adjust the primary calendar in his favor, Trump rewrote the Republican primary election rules to favor his campaign, by giving most or all delegates in each state to the strongest finisher or preventing other candidates from winning any delegates. Although there were many Republicans willing to take on Trump, the former President refused to participate in debates, and completely dominated the polls, to the extent that all his opponents except Nikki Haley dropped out before the first primary.

Other Party Candidates?

For the past decade, a solid ⅗ majority of Americans have told Gallup that they would like to see another party in American politics, and more than ¾ of adults under 50 agree. Their wish is unlikely to be fulfilled under the current rules. States have developed an assortment of seemingly neutral techniques to make it much harder for politicians not using the “Democratic” or “Republican” labels to qualify for the ballot. Parties that got a large share of the vote in a prior election qualify automatically. A new party or non-party candidate must gather thousands of signatures of registered voters in specific locations within a short time window.

In 2020, the Libertarians were the only “other” party that managed to get on the ballot in every state. The Greens were listed in 30; no other small party qualified in more than 18. The sole purpose of the centrist “No Labels” group is to create the possibility of offering a place on the ballot for a “ unity 2024 ticket” against what it sees as two unpopular candidates. Despite having tens of millions in funding, it has managed to get access to the ballot in only 16 states. (Eventually No Labels gave up because every potential qualified candidate decided that running under a new party label is a hopeless task.) After initially toying with the idea of running as a Democrat, anti-vaxxer Robert Kennedy, Jr. decided to jump through the hoops that states have created to deter new parties and independent candidates. He has estimated that getting on the ballot will cost $15 million.

A Democratic Party PAC is trying to prevent these alternative Presidential candidates from being listed on state ballots for the November election. As part of this effort, the Democratic National Committee filed a formal complaint with the Federal Elections Commission, accusing the Kennedy campaign of violating Federal election law by allowing a nominally independent PAC to gather signatures. No Labels filed a complaint with the Justice Department that its staff were being harassed by Democratic-affiliated organizations. These attempts are not novel. By one account, “The Democratic Party has a long history of filing challenges to keep minor party and independent presidential candidates off various ballots. It did so in 1936, 1940, 1948, 1952, 1956, 1964, 1976, 1980, 2004, and 2020.”

The Democrats have good reason to fear additional names on the ballot. Most American elections are conducted by plurality: whoever has the most votes wins, even if the winner has far less than a majority. The presence of additional candidates can affect the outcome whenever the winning margin is small. In Presidential elections this problem is magnified because the president is chosen based on the outcome of plurality elections in each state. So, for example, in 2020, Biden’s national margin was 4.5%, but in the six states that decided the election, his margins were 2.8%, 2.4%, 1.2%, 0.6%, 0.3%, and 0.2%-far less than the national gap. In the closest three of these states, the Libertarian Party vote exceeded the margin of victory. Under the current rules, the Democrats should do all they can to thwart candidates who might attract their voters, at least in swing states.

But voters need more choices, not fewer. We can’t rely on the deeply flawed primary system to deliver real choices. States could solve this problem by implementing two changes. First, let voters rank the presidential candidates. Maine made this change in time for the 2020 election. Voters could express their true first choice without the fear that doing so would cause the election of their last choice. Second, make it easier for candidates to get on the presidential election ballot by providing reasonable requirements applied equally to all candidates, regardless of their party affiliation (or lack of affiliation). States could require candidates to provide a filing fee that would be refunded if a candidate receives a modest share of the vote, in order to deter frivolous candidates. Real democracies have fair rules equally applied to all candidates and parties.

Trump’s Legal Problems

Trump’s path to re-election could be derailed if he is deemed ineligible for the Presidency due to the 14th Amendment’s disqualification of those who support an insurrection, as Colorado has found. Although there is a strong argument that states can bar him from the ballot, the Supreme Court prohibited any state from disqualifying Trump, on the grounds that it would create a chaotic “patchwork” of inconsistent decisions, even though the entire Presidential election system is based on a chaotic patchwork of state rules.

Trump has been indicted on a combined 91 felony charges in two Federal and two state criminal cases, each one of which carries a significant risk of conviction if given to an impartial jury. Trump’s strategy is delay. In the Federal January 6 case, his extremely dubious contention that he is absolutely immune from prosecution has already delayed the trial that was once set to begin in March 2024. In the Georgia January 6 case, a co-defendant’s motion accusing the prosecutorial misconduct has derailed those proceedings. In the Federal documents case, the Trump-appointed judge is doing everything in her power to ensure that the case never starts before Election Day.

Delay in these cases is essential for Trump, given that a significant number of swing voters leaning his way would change their minds if he were convicted, according to polls. If he is elected, his overt goal is to shut down the Federal cases, an extremely troubling plan to obstruct justice. What would happen If Trump is convicted and nevertheless elected, or convicted after election? He would certainly appeal the decision. If sentenced to prison time, it’s likely that he would be released pending the appeal.

What about Congress?

In November 2024, Americans will elect not only the President and Vice President, but 435 Representatives and 33 Senators. The Founding Fathers assumed that Congress would be the decision-making body, and the president would merely execute its will. Nevertheless, voters believe that the President determines the nation’s policies. They are basically correct. Through control of agencies, the legislative veto, Supreme Court appointments, and a vast array of unilateral powers that have either been granted by Congress or assumed by previous administrations, the President is the dominant player, despite the Founder’s wishes.

Nevertheless, a President needs the support of Congress to pass legislation. President Biden had a majority in both houses during his first two years, but did not have a working majority, due to the routine use of the filibuster in the Senate. His achievements are largely based on unilateral actions (executive orders, agency regulations, foreign policy) and just two pieces of legislation: the Bipartisan Infrastructure Law and the Inflation Reduction Act. The latter was adopted without a supermajority thanks to the reconciliation process, which inadvertently provides a filibuster work-around, but only once per fiscal year.

Biden beat Trump by 4.5 percentage points in 2020. If he has a similar or even more decisive victory in 2024, he will almost certainly not be able to implement the program favored by his majority. Gerrymandering of the House helped the Republicans win the majority in 2022. Four of the seats flipped to the Republicans in that year were in New York. However, the Democrats have now picked up the NY seat once held by fabulist George Santos. And court-ordered redistricting in the state seems likely to make the remaining mix slightly more favorable to the Democrats.

Even if Biden secures a solid victory, and has a majority in the House, Democrats are unlikely to hold on to a Senate majority. Only 11 of the 33 Senate seats to be filled are currently held by Republicans, who are expected to easily keep all of them. Democrat Joe Manchin is retiring, and his seat is sure to flip in solidly Republican West Virginia. Republicans have a significant possibility of gaining up to eight more seats. Democrats would have to hold all of them to maintain their majority. And even in that unlikely event, Republicans could continue to use the filibuster to block all legislation except for the one allowed per year under Reconciliation (and all matters included in that process must be budget-related).

What have we learned about our choices in this momentous election? Only a select few voters will have meaningful options:

• Senate: perhaps 8 to 10 seats will be tightly contested, but most states will have non-competitive races or none at all.
• House: typically 95% of incumbents are reelected, and no more than 10% of seats are competitive.
• Presidency: only about six states will be competitive.

The Only Choice

The Presidency is by far the most important of the three. There are many reasons to believe that a second Trump presidency would be far more dangerous to democracy than the first term. We have been warned about this looming danger by the editors of The Economist, the Guardian, Time, the New York Times Editorial Board, an entire special issue of The Atlantic, Republican Liz Chaney, former Trump White House staffers, and many of his high-ranking appointees, including his Chief of Staff, Attorney General, the Chairman of the Joint Chiefs of Staff, two Secretaries of Defense, and two National Security Advisors.

A large number of voters unfortunately cannot see through Trump’s web of falsehoods. Those who do cannot conceivably vote for a would-be dictator who serves no one’s interests but his own. All must vote against him, including those who strongly favor Republican policies, those who believe Biden is too frail, those who can’t bear to support Biden because of his arming of Israel, and those who think that the system is corrupt and voting does not make any difference. For all of us, there is no choice but to vote against Trump, a vote that can be a first step to one day improving our choices.

Originally published at https://defectivedemocracy.com on February 24, 2024.