No, the Democratic Party's Process for Selecting a Presidential Nominee Isn't Anti-Democracy

Come Up With Better Narratives. Better Yet, Focus on Actual Issues.

With President Biden’s decision to drop out of the presidential race, Republicans are racing to come up with narratives about the sudden shift in the Democratic Party toward Vice President Kamala Harris, who has vocal commitments from enough delegates to secure the Democratic nomination. Obviously, the narratives are an attempt to define her before she has a chance to define herself.

Some narratives are mundane or expected, such as Republicans framing Vice President Harris as the Biden administration’s “border czar.” Others are more cringeworthy or racially charged, such as calling her a “DEI vice president.” Thus far, polls have shown that Trump performs well with Black voters. That’s by historical standards, considering how poorly Republicans typically perform with Black voters. If the line of attack on Vice President Harris as a “DEI vice president” becomes more common, it could backfire on Republicans.

One of the more frequent lines of attack isn’t so much aimed at President Biden or Vice President Harris as much as it is the Democratic Party. A friend of mine recently mocked the Democratic Party, writing on Facebook, “Party of democracy.” The line was followed by a couple of laughing emojis.

Look, I get it. Democrats put themselves in this situation. During the 2020 cycle, then-candidate Biden, who was 77 years old at the time, and his campaign aides floated the idea of serving only one term precisely because of his age. Some may remember that candidate Biden said he was “a bridge” to younger leaders in his party.

Now an octogenarian, President Biden decided to run for re-election. Knowing that his age was one of the biggest concerns about his candidacy, he went through the primary process and secured the delegates to win renomination. As we all know, he then gave one of the worst debate performances in presidential campaign history and couldn’t put concerns to rest in subsequent interviews. Dozens of House and Senate Democrats began pulling away, as did former President Barack Obama and prominent party activists. The writing was on the wall.

With the Democratic National Convention less than a month away, there’s no time to run a presidential primary across 50 states and the District of Columbia. Convention delegates will pick the nominee, which, as noted, will almost certainly be Vice President Harris. This, according to Republicans, makes Democrats, uh, anti-democratic. The retort is, of course, a slap back at Democrats, who have frequently and loudly framed Trump as a threat to democracy.

I agree this isn’t a good look for Democrats and even mentioned that in my post on Friday. I also don’t know if, at the end of the day, voters really care. YouGov found that 49 percent of independents believed President Biden should withdraw while 23 percent said he shouldn’t. (See the crosstabs on p. 84 of the PDF.)

Off the top of my head, I can think of two problems with the Republican argument.

First, I don’t see much difference in how Democrats will select their nominee in 2024 and the process we use for electing a president. I’m not talking about showing up in November to cast a ballot. Remember, we don’t elect the president based on the popular vote. The process is governed by Article II, Section 1, Clause 3 of the Constitution and statute.

Every voter who casts a ballot is voting for a slate of electors who, as 3 U.S.C. §7 explains, “[S]hall meet and give their votes on the first Tuesday after the second Wednesday in December next following their appointment at such place in each State in accordance with the laws of the State enacted prior to election day.”

Those electors ultimately cast their ballots and are transmitted in accordance with 3 U.S.C. §11. Only the electors of the candidate who won the state are recognized. After electors have cast their ballots, Congress must meet on January 6, per 3 U.S.C. §15, to count the electoral votes. The candidate with 270 electoral votes or more wins.

However, there have been occasions in recent history when the winner of the Electoral College lost the popular vote. (I’m only going through recent history, not 19th century examples.) That happened in 2000 and 2016. In both elections, the Republican nominee won the Electoral College while the Democratic nominee won the popular vote. In our system, winning the popular vote is little more than symbolic.

This ultimately led to complaints that the Electoral College was undemocratic and that the way we elect the president needed to be changed to a national popular vote. Over the past nearly 20 years, 17 states and the District of Columbia have adopted the National Popular Vote Interstate Compact (NPVIC). These states and the District represent 209 electoral votes. Of course, the constitutionality of the NPVIC is dubious, to put it generously, but that’s a topic for another day.

Republicans generally oppose NPVIC. Although I support some significant election reforms, like ranked choice voting, I agree with Republicans on NPVIC and prefer the Electoral College. That’s not the point of the post. The point is that Republicans’ criticism of the way Democrats are choosing their nominee—at convention by a group of delegates—is similar to the way that the Electoral College functions. In fact, faithless electors—electors who vote for someone other than the presidential candidate for whom they’re supposed to vote—are still allowed in many states, although rare.

One faithless elector was present in the 2004 presidential election and seven in 2016. Three others were invalidated in 2016 because of state statutes requiring electors to vote for the state's presidential election winner. The Supreme Court upheld such state-level statutes in Chiafalo v. Washington (2020).

What’s the point? Well, both recent Republican presidents were elected without winning the popular vote, which led to accusations of an undemocratic process. The argument many Republicans are making about how Vice President Harris will win the Democratic nomination seems hypocritical when viewed through that lens.

The second problem with Republicans’ argument is that there’s no moral equivalence between how Democrats will choose their nominee and the actions of Republicans leading up to January 6, 2021. What happened on and leading up to that day is part of the reason why Democrats have said Trump is a threat to democracy. The other reasons are because he said he would be a dictator for a day, his fawning over authoritarian leaders, and his profound lack of respect for the Constitution.

It wasn’t simply that a mob showed up at the Capitol (some of whom were shouting, “Hang Mike Pence”) and forced their way into the building in an attempt to stop Congress from fulfilling its obligations. There are also Trump campaign’s orchestrated efforts to submit fraudulent electors to Congress to steal an election that Trump lost.

It’s a dangerous, short-sighted game Republicans are playing. It’s one they’ve been playing since Trump came down the escalator at Trump Tower in New York in June 2015 to announce his first candidacy. I’m not a fan of Trump. I despise him. But Vice President Harris has her own issues that can hurt her campaign. Just run a campaign based on issues and let voters decide who the next president will be.