It doesn't take a Constitutional Amendment. It doesn't take an interstate compact. It just takes 38 people, and they don't even have to follow through on their threat.
This morning on Fox News a group of on-air people are bemoaning the potential that some of Trump's Electoral College electors might, with the connivance and urging of Democrats, withhold their vote from Trump.
It was an outrage, they said. They would be "stealing democracy", said the words at the bottom of the screen. They would be "thwarting the will of the people", they said. The people voted and their votes should count, they said. It would be damaging the integrity of democracy, they said. Outrage! Indignation!
In a story yesterday Fox New's Tucker Carlson was dumbstruck at the idea that a Texas Elector was considering withholding is vote from Trump because the elector considered Trump to be unqualified and dangerous.
Students of irony--and especially students of political messaging and irony both--should take close look at what is happening on Fox News. Trump's election is being defended against the operation of the Electoral College system, saying that Trump's election expresses the "will of the people."
Of course, Hillary Clinton won some 2,700,000 more votes than Trump and Trump's victory was made possible by the Electoral College system itself. The Electoral College system is intended to confound the will of the people, not express it. This is not a bug. It is a feature, fully intended by the Constitution.
As an example of political messaging both Trump and the people on Fox people are superb at message consistency and discipline. They do not blink, they do not complicate with subordinate clauses of explanation or subtleties. They say that Donald Trump expresses the "will of the people" by having won the Electoral College vote. Period. The Electoral College vote is what counts, yes, and the Electoral College is the will of the people. That second part is where the irony comes in, since the opposite is the case, by design.
We are watching the third way we can change the Constitution, and that is by using it by its original intent, both as the Constitution reads and as the Founders intended. It is exactly Constitutional for electors to vote for whomever they want. And if it were to happen it would cause a Constitutional crisis which would likely lead to a change in the Constitution because what people expect is at variance with how the Constitution reads.
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Students of irony--and especially students of political messaging and irony both--should take close look at what is happening on Fox News. Trump's election is being defended against the operation of the Electoral College system, saying that Trump's election expresses the "will of the people."
Of course, Hillary Clinton won some 2,700,000 more votes than Trump and Trump's victory was made possible by the Electoral College system itself. The Electoral College system is intended to confound the will of the people, not express it. This is not a bug. It is a feature, fully intended by the Constitution.
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| Alabama Newspaper Headline |
If thirty eight of Trump's electors were to threaten to do what the Constitution specifically tells them it is their right to do--choose someone other than Trump--then the Electoral College would fail to give a majority to Trump. If they voted for Hillary Clinton, then she would win. If seven or ten of them voted for Paul Ryan, for example, and the others spread out their votes, then the House of Representatives could consider Hillary Clinton, Donald Trump, and number three Paul Ryan. Or if a majority of electors voted for some moderate Republican or centrist Democrat--Michael Bloomberg?--then he would win the presidency.
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| Chris Supron, Republican elector, not wanting to vote for Trump |
The result of even a threat of this would be that the Electoral College would lose credibility as the system for counting votes in a series of statewide winner-take-all votes, with states having weighted votes. And even that has exceptions, because two states aren't winner-take-all. A crisis of some considering the election rigged would certainly 38 electors were to select Hillary Clinton. Again, it would happen if they were to say they intended to vote for some compromise candidate, e.g. Bloomberg--even if they then decided not to do so. But it would be a wake up call. People on the right, left, and center would all realize that the Electoral College is a time bomb waiting to go off.
Can in fact electors vote "their conscience" and vote for whomever they want? Yes. State law can attempt to bind them but they are given the vote to cast as they choose. (The Supreme Court has ruled on this. They are Constitutional principals, not agents. They are given instructions but ultimately they have a vote, to cast freely. They can vote their conscience.)
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First, the office of president should not be chosen by "the people" but by wise representatives of the people who will choose the best person in the cool light of reason and contemplation. In Hamilton's words:
"It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations."
And Hamilton said in #62 that they could best count on this wise boto pick the best person, not just someone with political showmanship skills:
"Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States."
And Hamilton warned that this would be a way to protect against our elections being subverted by foreign enemies who might disrupt an election by the people, but whose intrigue would be blocked by the sober electors who would see through that intrigue:
"These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils."
Here is the full text: Alexander Hamilton: Federalist #68
No one in America today expects the Electoral College actually to work the way a clear reading of the Constitution specifies--not even people who think they want "strict constructionist" judges on the Supreme Court. Voters expect the Electoral College to act like a "weighted vote" version of the popular vote, which is why, if the Electoral College voters did what the Constitution actually specified, it would be a crisis.
Trump/Fox are not arguing that the Constitution be followed, nor that the will of the people be followed. They are arguing for the legitimacy of an election by states, by weighted votes, with two states (Maine and Nebraska) opting out. The system in place has legitimacy gained from practice, not from the Constitution and not from the will of the people expressed as a majority of votes. The practice of weighting votes, voting by winner-take-all state by state, and the practice of most (but not all) electors voting as expected does not have the legitimacy of any fundamental principle other than tradition. In a crunch this will be inadequate and a crisis will happen.
Even now a mini-crisis is underway: Trump and Fox need to assert indignantly something which is demonstrably untrue: that he won a popular majority and that the Constitution spelled out the rules. He did not and they do not spell out the rules for current practice.
If the outcome of the election of 2016 were thrown into actual doubt by faithless electors (i.e. electors exercising their right to vote for whomever they wish) then the situation might be fixed either by amendment installing some sort of state-by-state system, or by additional states signing onto the Interstate Compact thus making the election a popular vote decision.
Some people think that a weighted vote system is the problem with the Electoral College. Others think it is a good idea, even if it is not equal. But no one thinks that the system envisioned by the Founders--vote for someone who then exercises independent judgement--has legitimacy, but that is the Constitution we would look to in a crisis.
Americans think they are voting for President. They aren't.
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5 comments:
"But no one thinks that the system envisioned by the Founders--vote for someone who then exercises independent judgement--has legitimacy."
We don't even know who these electors -- selected by their parties -- are, do we?
Fascinating blogpost. I am somehow reminded of a statement made by William Appleman Williams in an undergraduate history course at OSU: that but for the Bill of Rights, the Constitution would be a document of perfect tyranny.
Things are getting exciting again. At least for a couple of days. I don't remember my high school civics teacher mentioning any of this. I took a course in Constitutional Law in college and it wasn't mentioned there, either. Peter knows, or at least boned up on it.
The press will be waiting outside the electoral college building like they do at the Vatican waiting for the results of the new Pope. If it goes on for more than a couple of hours, the speculation will begin. What's taking them so long? What are they doing in there? Are they making a change? OMG Okay, I'm dreaming. But,....
Like “Fake News”, Electoral College Manipulation Will Backfire on Democrats
The outcome of the UpClose and other Democratic advocacy for untethering the voters in each state from the electors they send to the Electoral College will, soon enough, be owed by Trump and Republicans. Like the “fake news” and “fact checking” labels, Republicans will turn "Hamilton Electors" back against us with far greater power from those words that we ever will. No argument is quite so effective as “you’re the ones who said this is within the rules”. We are playing with fire.
Our hubris as Democrats now sees us repeatedly disregarding the aphorism that “when you’re in a hole, stop digging”. Under Hillary Clinton’s leadership, and grossly misguided by the theory of the “Emerging Democratic Majority” (John Judis, et al, 1969), we thought it was a good idea in 2016 to pit racial identity politics against a 72 % white population. “Judis has now recanted his own analysis. In an election postmortem, Judis now argues, ‘the idea of an enduring Democratic majority was a mirage.’ His essay, headlined ‘The Emerging Republican Advantage’, now swings in the opposite direction.” (See, New York Magazine, “Is the Emerging Democratic Majority Already Dead?”, Feb. 16, 2015,https://goo.gl/3HUnNp). Until 2016, no racial label seemed more superfluous than “white nationalists”. Nationalists, i.e. voters who put God and “America First” above all else, we thought, were almost all white. Yet Trump’s nationalist message drew 30% of the Hispanic vote. (See LatinoUSA, Nov. 9, 2016, https://goo.gl/CDQHX8). Maybe its not such a good idea to be preaching to an increasingly nationalist body politic that in the event Democrats squeak by with another presidential win, it is perfectly fine for Republicans to roll out facile labels like “Hamilton electors” and pop history to steal our win.
Like the DailyKos (Nov. 16, 2016, https://goo.gl/tbguqb) and others have reported, Republicans now control the governor’s office in 33 states, amounting to 60 % of the population, while Democrats control just 16 states with 40 percent of the population. Republicans control 25 states outright and another two where they can override a Democratic governor’s vetoes. These 27 states cover 56 percent of the population. By frightful contrast, Democrats control only six states and have veto-proof majorities in just two (for a total of only 19% of the population). If I was going to guess how the electoral college could be used to rob Democrats of a future win, it would be manipulation of the two-thirds quorum requirement of the Twelfth Amendment— perhaps a last minute switch of location that only Republicans learn about. It doesn’t take a lot to imagine other scenarios by which the electoral college vote can be coerced, tricked, bribed or otherwise manipulated.
As some commentators have pointed out, Republicans probably already have the two-thirds of the states needed to call a constitutional convention under Article V. It would take 12 states to prevent a Republican juggernaut in ratifying the Republican amendments. Article V requires three-fourths of the states legislatures to ratify an amendment. Not three fourth of the popular vote, three fourths of “the legislatures”. We presently control only eight states.
Michelle Obama’s inspirational words that “when they go low, we go high” were swept aside by Democrats on the morning of November 9th. Since then, we and our media have hatched one scheme or narrative after another to delegitimize Trump’s constitutional win. These, and the toxic rhetoric accompanying them, will go nowhere for us, but will go one place for sure: the legitimization of Trump and Republicans to do to us what we currently advocate, but will be unable to do to them. Hamilton, Republican can say, certainly would want the Electoral College to keep "socialists" or "communists" like Bernie Sanders out of the White House. We may be a party not merely in decline, but in free fall.
Well, there's this: As of last year, there are more minorities being born in the US than whites. It's projected that by 2044 whites will be in the minority. That's when politics will really be interesting.
Peter is right. We do not directly elect the President. All those millions of voters casting on Election Day were merely giving a suggestion.
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