Making Sense of the 2024 US Presidential Election
A guest post by Nancy Pelosi's former chief of staff
John Lawrence spent 38 years as a senior staffer in the U.S. House of Representatives and is the author of Arc of Power: Inside Nancy Pelosi’s Speakership 2005-2013 and The Class of ‘74: Congress after Watergate and the Roots of Partisanship. He was Chief of Staff to Speaker Nancy Pelosi and is now Visiting Professor at the University of California Washington Center. I asked him to give his view on how the US Presidential election is shaping up while also explaining some of the hurdles generated by the US electoral system. Few people are more qualified to offer this sort of analysis, and I am very happy to be able to share this with you all.
The complexities of electing an American president and Congress are as perplexing—and aggravating—to many voters within the United States as they are to those observing the process from overseas. Much of that confusion is attributable to the contradiction that runs through the design and operation of American government from its founding in 1787 to this day. “If every Athenian were a Socrates,” wrote James Madison, the fourth president and often regarded as the ‘Father of the Constitution,’ “every Athenian assembly would still be a mob.”
In other words, the legitimacy of power flows from the people, but the Founding Fathers weren’t sold on the wisdom of human beings to effectively govern themselves.
The electoral structure they fashioned remains convoluted. Rather than allowing the presidency to be determined by whomever wins the popular vote—by majority or even, as is often the case, a plurality—the United States chooses a president indirectly through an Electoral College composed of 538 individuals whose numbers reflect the congressional delegations of all 50 states and three for the District of Columbia. Each state can determine how to allocate its electors, and all but two (Maine and Nebraska) award all to the winner of the popular vote in that state, by however small the margin of victory may be.
Problems often arise from the design of this process, especially when one candidate clearly wins the popular vote nationally but loses the electoral vote and therefore the election. This phenomenon has occurred just four times— in1876, 1888, 2000, and 2016—but the two most recent cases have prompted quadrennial fears about the will of the majority being overturned by an eighteenth-century construct designed to enhance the electoral advantage of slave-owning and small population states.
In the modern age of hyper-partisanship and ideological alignment of parties, these factors mean that there are only a handful of states whose preference in both the popular and electoral votes is likely to be in doubt on Election Day, 2024. And within those states, a tiny number of voters will almost certainly determine how their state’s electors are allocated, thus determining the outcome of the election for the entire country.
For example, in the 2020 election, Joe Biden won the state of Arizona and its 11 electoral votes by less than 11,000 votes out of 3.3 million cast; in Georgia, the margin was less than 12,000 votes, which determined the state’s 16 electors; in Nevada, 34,000 votes allocated 6 electors. These states, and a handful more that remain on the cutting edge in 2024, explain why Joe Biden could crush Donald Trump by 7 million popular votes but only eke out an electoral college victory.
Why does this artifact of eighteenth century, slave-owning America persist into the twenty-first century? Because the same men who drafted the Constitution in 1787 included provisions that made it hugely difficult to alter that document. The same small states that enjoy disproportionate power in the Electoral College could (and doubtless would) block any constitutional amendment designed to convert the presidential electoral process into a popular vote decision that diminishes their influence.
This same disproportionality is manifested in the design of the Senate, one-third of which is up for re-election every two years (as opposed to the House of Representatives, where all 435 members are elected every two years, a ridiculously short time in the modern era but reflecting a basic distrust of the central government that pervaded much of the Constitutional Convention). Not only is the Senate constitutionally slanted towards smaller states, since each state is given two senators regardless of its population, but also the Senate’s rules—particularly the filibuster (which has no standing in the Constitution itself)—require a supermajority of 60 to move most legislation. Given the infrequent existence of a supermajority by one party or bipartisan collaboration between the parties, the filibuster renders the Senate, in the words of its Republican leader Sen. Mitch McConnel (R-KY), a “legislative graveyard.”
Even with the filibuster, the coming Senate elections will be hugely consequential, especially in the area of judicial appointments. In the face of Republican obstruction to filling seats on the nation’s federal courts during the Obama era, Senate Democrats removed the supermajority requirement for all Executive branch and judicial appointments except for those to the Supreme Court; and once they returned to the majority in 2017 with a Republican president, McConnell and his colleagues extended the modification to cover appointments to the highest court as well. As a result, Trump was empowered to pack the Supreme Court with ultra-conservatives who likely would never have been acceptable had the 60-vote requirement remained in place, requiring agreement with some Democrats to fill a vacancy.
The Senate today has a 51-49 Democratic majority, and as a result, so long as his party remains united, Biden has been able to fill a large number of judicial seats with a diverse group of largely progressive-leaning appointees who can secure confirmation. But Democrats are certain to lose that one seat margin in the coming election due to the retirement of Sen. Joe Manchin in the deeply Republican state of West Virginia, and possibly more, raising disconcerting questions about the ability of a re-elected Biden to appoint any, let alone progressive, jurists over the coming four years when many judges, and perhaps several Supreme Court justices, are likely to retire. Should Trump be elected with a Republican Senate, the American judiciary would unquestionably take a decided turn to the Right as there would be little need to accommodate the concerns of Democratic senators.
The supermajority requirement of the filibuster rule can also have a dramatic impact on the legislative policies the coming Congress and president will produce. Although bills generally require 60 votes to clear the Senate, if the Congress can agree to a budget resolution for the next fiscal year—a virtual impossibility unless both the House and Senate are controlled by the same party—then a process known as “reconciliation” allows Congress to pass sweeping laws with a simple majority. Major legislation like the Bush (2001) and Trump (2017) tax cuts, as well as Obama’s Affordable Care Act (2010), were all passed using this reconciliation process. Winning even a one-vote margin of victory in the Senate, therefore, can be enormously consequential in determining the direction of policies like taxes, health care, education, regulatory reform and many others.
Many analysts believe Democrats stand their best chance to gain the upper hand in the House election. Since the 1990s, when a revitalized Republican Party moved into rough parity thanks to an infusion of post-Civil Rights Act conservative southern Democrats, control of the House has see-sawed back and forth more frequently than at any time in the past century. At present, a shift of just five seats out of 435 would put Democrats into the majority. Far more Republicans currently occupy seats in districts where Biden beat Trump in 2020 than the reverse; this, combined with the chaotic tenure of Republicans over the past two years—removing their own speaker, which is unprecedented, internecine battles, and extremely low productivity—means these seats will more likely swing towards the presidential candidate who wins those districts, which could produce a Democratic House victory even if Biden were to lose the national election.
But there are important qualifications: House seats often do not reflect the overall votes for a party in a particular state because of the way legislatures draw the district boundaries. Either because of demographic concentrations or purposefully “gerrymandered” lines designed to favour one party, it is possible for the allocation of House seats to deviate dramatically from the sympathies of voters. In numerous states, like Ohio, New York, New Jersey and Florida, the number of seats won by one party or the other is a tiny proportion of the overall votes for that party throughout the state. If those district lines were intentionally skewed to disadvantage a racial minority (as was recently the case in Louisiana, for example), the district lines can be ordered redrawn by a court. But if those lines were merely designed to benefit one political party over another, the courts have taken a hands-off approach, asserting there is no constitutional protection of fair representation for political parties.
With all these inherent uncertainties and ongoing questions about voter apathy, it is challenging to anticipate where the electorate will land on November 5. All that seems likely is that the outcome will be close, which is almost certain to trigger yet another unwelcome round of recriminations about the legitimacy of the count. The presence of several third-party candidates who have no chance of winning also complicates any prediction; the U.S. system is stacked against these outlier candidates, but by drawing even a small number of votes away from one of the major party candidates, as Ralph Nader undercut Al Gore in 2000, they could easily cost either candidate a state whose electoral votes they desperately need to reach the 270 election threshold.
Biden must find a way to stimulate participation by groups of voters that should be his allies: Black and Hispanic voters, young voters who align with Democrats on cultural issues, and white working-class voters whose economic interests have little in common with Trump’s pro-business/pro-affluent tax cut agenda. Advanced age is an albatross for Biden (less so for the seemingly more energetic Trump) but Democrats recurrently suffer from uninspired messaging that leaves even supporters wondering what they have accomplished. Biden also faces a challenge in that several of the key issues—the economy, an Israel-Gaza ceasefire, the war in Ukraine—are crises he can affect only marginally by November. He therefore runs the risk of having identified all these as key problems that will confront the next president but without an impressive record of having addressed them while he is in the Oval Office.
Trump faces the historic uncertainties of being a convicted felon, not to mention a convicted sexual abuser and tax cheat, which could diminish his appeal to swing voters, especially educated suburban women. But none of the accusations, including the indictments for stealing and leaking classified national security documents and encouraging an insurrection against the government on January 6, 2021, have put a dent in the loyalty of his ardent followers. In what numbers these loyalists will vote, however, is an open question: Trump has spent years delegitimising elections, and it seems reasonable to wonder how many of his acolytes are repelled by the notion of participating in an election they believe will be rigged, even to vote for their icon.
On the congressional front, it will take a miracle for the Democrats to retain the Senate majority, even though in the party’s frontline states, incumbent senators are currently running ahead of their opponents and Biden alike. But because Democrats can only afford to lose one Senate seat (Manchin’s having been conceded to the Republicans already), the odds seem stacked in favour of the Republicans. Democrats have a better chance to regain control of the House, although it is by no means a slam dunk.
Unlike the fairly clear trajectory of the upcoming British election, the chaotic nature of American elections is difficult for many voters to comprehend and is one of the reasons confidence in the electoral system and the people occupying key positions in government remains at abysmally low levels, a warning sign for any democracy. More Americans believe that aliens walk among us disguised as humans than give positive reviews to our elected officials. Some of these problems are unquestionably structural and difficult to alter; those problems, which are similarly manifest in governance once the elections are over, contribute both to the record levels of partisanship and cynicism influencing American attitudes towards our politics.
The election of 2024 could produce a decisive outcome in terms of narrowly securing political control, but in a highly polarized country, it is unlikely to produce a consensus that grants legitimacy to the winners, which is why analysts and voters alike view the coming four months—and likely the next four years—with something between anxiety and dread.