Trump’s indictment can’t solve the real threat: our undemocratic electoral system

Read the indictment handed down by a Fulton county, Georgia, grand jury: weighing in at 98 pages, it is a breathtaking document, granular in its description of a coordinated criminal enterprise that brazenly broke numerous Georgia state laws.

The 19 persons named in the racketeering charges are not, however, members of some sleazy organized crime syndicate; rather, they include the former president of the United States, his chief of staff, a former mayor of New York, a former law school dean and a former official in the US Department of Justice. Together they stand accused of knowingly and willfully joining a conspiracy to subvert the outcome of a fair, democratic election.

Placed alongside Trump’s other three indictments, the Georgia case bears the greatest similarity to the federal charges, filed earlier this month, accusing Trump of criminal acts that culminated in the January 6 insurrection at the US Capitol. Still, the Georgia matter carries different risks and rewards.

Georgia’s racketeering statute is a more flexible instrument than its federal counterpart, and so empowers the prosecution to craft a broad narrative linking Trump’s lying to the state’s officials, his intimidating and defaming its election officers, and his sanctioning a slate of false Georgian electors for his nationwide efforts to overturn Biden’s victory. And as the constitution’s pardon power only extends to federal matters, a state conviction would deny Trump the opportunity to pardon himself (itself an act of dubious constitutionality).

In declaring that she intends to try all 19 co-conspirators in a single trial, however, Fulton county district attorney Fani Willis risks turning the proceeding into a long and unfocused affair, marred by the grandstanding of multiple lawyers for the defense. Add to this the fact that while federal trials cannot be televised, this case arguably could be, raising the concern that a solemn proceeding could turn into a media circus.

There is, of course, another deeper source of alarm. Much as we might hope that the criminal justice system will put an end to the clear and present danger that Trump poses to our constitutional democracy, the prospect remains that the ultimate judgment on Trump will be passed by the voters in November 2024. And this reminds us why Trump trained his lies on the result in Georgia in 2020.

Biden defeated Trump by nearly 8m votes in 2020, a substantial if not overwhelming margin of victory. Matters were very different in the electoral college. A combined total of 44,000 votes handed Biden victory in the swing states of Arizona, Wisconsin and Georgia.

Had Trump succeeded in “finding” 45,000 more votes in these three states, the 2020 election would have resulted in an electoral college tie, an unseemly result that, by the terms of the constitution, hands the task of electing the president to the House of Representatives. In a travesty of democratic rule, when the House elects the president, each state delegation, and not each representative, gets a single vote, and while Democrats still controlled the House after the 2020 election, Republicans actually enjoyed a majority of state delegations. Trump would have won.

While it is hard to imagine Trump defeating Biden in the popular vote in 2024, the electoral college remains another matter. Polls already predict another tight electoral race. Maga zealots and election deniers continue to target and attack independent election officials in the key swing states. Add to the mix the possibility of third-party candidate, who, like Ralph Nader in 2000, would have no prospect of winning but could peel away votes in these crucial states, and the perils magnify.

Generations of Americans have recognized the defects in the way we elect our president. The first serious effort to eliminate the system came in 1816 and hundreds have followed, all failing given the extreme difficulty of amending our constitution. It is a grotesque fact that a candidate who has made clear his hostility to democratic governance could only be returned to office through an antiquated, dysfunctional and anti-democratic electoral system.

  • Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and teaches at Amherst College

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