In an interview with Mother Jones’s voting-rights champion Ari Berman, Hillary Clinton questions the “legitimacy” of Donald Trump election and calls for an “independent commission” to “get to the bottom of what happened.” She cites both Russian interference in the election and GOP voter-suppression efforts in key states as having quite likely cost her the election.
Perhaps she is right, and possibly an independent inquiry into the conduct of the campaigns and the election itself is worth doing, though it’s hard to imagine how such a commission would be set up and its membership determined.
My major concern about Clinton’s comments (aside from the fact that her identity instantly polarizes any discussion of this topic and makes “independent” inquiry impossible) is her use of the word “legitimacy,” a word that is derived from the Latin word legitimus, which means lawful. Does a legitimate election mean one in which no laws were broken by the winning campaign? Quite likely there has never been such an election. Does legitimacy mean that the outcome was not determined by illegal acts? That, too, is a standard that is almost impossible to apply, unless votes are quite literally moved from one candidate to another after they were cast. Presidential campaigns and elections are complex, dynamic phenomena in which multiple factors can be said to have affected the outcome —particularly in the case of an election that came down to a relative handful of votes in just a few states.
If Russians did manipulate many thousands of Americans to vote for Trump who might not have done so otherwise, or if GOP election officials prevented hundreds of thousands of eligible voters from participating in the contest, that is obviously unfair and anti-democratic. But that is not the same as illegitimate. We don’t have a way to guarantee fair elections, and the United States is not, strictly speaking, a democracy. (It is, of course, a constitutional republic.)
Clinton herself hints at the basic problem:
For Clinton and others who question the legitimacy of the election results, particularly due to Russian interference, there’s not an obvious next step. “We don’t have a method for contesting that in our system,” she said.
That is true, but we do have a method for resolving presidential elections in our system. It is called the Electoral College, and all the disputes about popular votes and which states this or that candidate has “legitimately” won are made moot once the Electoral College has cast its ballots and the results have been certified by Congress. There is no “obvious next step” for the redress of electoral grievances after that because it was clearly intended to be the last step.
As it happens, I intensely dislike the Electoral College and favor its elimination (or perhaps its neutralization by an interstate compact awarding the popular vote winner with an Electoral Vote majority). It’s not fair, and it’s not democratic. But it is the very definition of legitimacy when it comes to presidential election disputes.
But I’m not just quibbling over Clinton’s choice of words. For the loser of a highly controversial presidential election to question the outcome’s legitimacy a year later is a recipe for endless retrospective partisan warfare. Without any question, had the outcome been reversed, Donald Trump would have challenged its legitimacy early and often (he all but said he would not recognize any loss as legitimate on the campaign trail, and to this day he refuses to acknowledge he “legitimately” lost the popular vote). But that’s part of why Donald Trump is a dangerous president, particularly leading a party that is prone to threaten revolution — or “Second Amendment remedies” — when thwarted.
Hillary Clinton is better than that. Yes, I’m sure she feels freshly aggrieved every day at the victory that seemed improbably to vanish into thin air so late in the 2016 campaign, and not just for herself, but for the country that is undergoing a sort of Babylonian captivity to Trump and his allies. But while it’s not clear Trump won fair and square, he did win, and under our system, flawed as it is, that’s final.