US Presidential Election and the Perils of Excessive Decentralisation | Vijay Kumar

The November 5 US Presidential Election is heading for a breathtaking photo finish. As latest opinion poll conducted by the New York Times shows, both Donald Trump and Kamala Harris are poised neck to neck.

The US Presidential election is regulated by peculiar regulations. The popular votes secured by candidates are not decisive; what clinches the outcome is majority secured in the Electoral College.

Unlike India, which is quasi-federal state, the US is a hardcore federal country, as it came into being as a result of a compact or an agreement among the states, described as ‘coming together’ by political scientists and constitutional scholars. There is no centralised election commission in the US. All fifty States have their own election commission with their different rules, unlike India where we have one election commission for the whole of the country – not only for the parliamentary election but also for the state assembly elections.

Every State in US elects delegates, and their numbers vary according to the population of that State. There are 538 delegates in the Electoral College for the presidential election. Out of 538, 435 and 100 belong to the House of Representatives and Senate respectively. 3 delegates come from the capital, Washington DC. Thus, the winning candidate is required to secure the votes of 270 delegates in the Electoral College.

There have been five instances when the candidates, even after securing a majority in popular votes, lost the election because of his/her failure to win the vote of 270 delegates in the Electoral College. Two notable instances which automatically crop up in mind are the Democrat nominee and then Veep, Albert Gore, and Bush (Junior) in the Presidential election in the year 2000, and the Presidential election between Democrat nominee Hilary Clinton and Donald Trump in 2016. Both Gore and Hilary secured more popular votes than Bush (Jr.) and Trump, and yet, they lost the election on account of theirs not securing majority in electoral college. This bizarre Rule distorts the popular mandate in the same way as first-past-the-poll rule skews it in the multi-parties Parliamentary election in India, and thus suffers from a democratic deficit.

The reason for the knife-edge contest is that US, like India and many other countries, is too polarized. The white supremacists are solidly aligned with Trump notwithstanding his fascist characteristics. When Trump was voted out in the last election, i wrote that “Trump is gone but Trumpism is surviving and will survive”. On the other hand, Liberals are core supporters of Democrats. Along with polarization, the vestige of patriarchy in the US social structure still survives. Unlike Obama, black males may not go whole hog with Kamala Harris only because of her gender. More than black, the women’s votes, cutting across race and ethnicity, may be decisive, if Kamala Harris wins, because of her advocacy of abortion right and withering critique of the Dobbs v. Jackson judgment of the Supreme Court rendered in June 2022, which overturned the cause celebre judgment in Roe v. Wade handed down in 1973 recognising the right of women to terminate an unwanted pregnancy. On the other side of the spectrum, Trump is raising the issue of migration, which seems to be cutting ice with his conservative constituency.
Similarly, the States in the US, too, are equally polarized. If, on the one hand, New York and California are solid democrat bastions, Texas and Florida, on the other hand, are Republican strongholds. The outcome is, therefore, critically contingent on voting in ‘Swing States’ – popularly known as “battleground” states. In the 2000 Presidential election between Albert Gore and Bush (Jr.), it was in Ohio where the counting of votes went down to the wire resulting in the filing of an election petition in the Supreme Court, where William Rehnquist Court, in brazen-facedly biased judgment, decided in favour of Bush (Jr.).

In the 2024 election the battleground States are Georgia, Michigan, Pennsylvania, North Carolina, Wisconsin and Nevada, and who between Trump and Harris secures more delegates in these swing States, will win the race. Though the election is going to be nail-biting, it can safely be predicted that Trump’s victory will lead to sharp cleavage and menacing rise of right-wing politics and toxicity inherent in it – not only in US, but other parts of the world, including India. If this US election, which is turning out to be cliff-hanger, culminates in favour of Kamala Harris, it will be profoundly historic, as a woman, that too coloured woman, will occupy ‘White House’, the most powerful political executive office of the world, and that would be an effective and perfect foil to looming spectre of fascism. Therefore, the outcome of this election is extremely consequential for the US and the world.

(Author: Vijay Kumar, Senior Advocate, Supreme Court of India and author of a recent book ‘The Theory Of Basic Structure: Saviour Of The Constitution And Democracy’)