Thoughts for a Faithful Elector
If you are a fellow humane being, no doubt you are wondering what choices you have, both legally and ethically; and you must be even more baffled about the potential consequences to you and the country you love.
When you signed up to be an elector, you probably just thought that you would be performing a sacred ritual for a quaint — but outdated constitutional relic. A constitutional remnant that has come under attack for electing presidents that are not even the winner of the popular vote no less! It turns out that the framers of our constitution keep proving their brilliance. Alexander Hamilton wrote about his concern that the people might elect a demagogue, and about his concern that foreign powers might try to influence the election. Due to those concerns and others, they created the Electoral College as a safety net to prevent that from happening. For over 200 years, the rip-cord of the Electoral College had not been pulled since there had never been a need. Due to 200+ years of disuse, we forgot what it was for, and simply lament its causing the popular vote to diverge from the Electoral vote.
Electors’ brains have not been called upon for judgment for so long that states and parties have imposed laws and pledges in an attempt to swat down the occasional elector that steps out-of-line in order to make a statement. For over 2 centuries, the EC has not changed the outcome of an election, and none of the rebellious electors have been prosecuted — nor can they be according to Constitutional scholars (see additional references at the bottom), AND ACCORDING TO THE 10TH CIRCUIT COURT OF APPEALS ON 12/17/16 (see Politico, Lessig and the ruling itself)!
Albert Einstein famously said “Never do anything against conscience, even if the state demands it.” The state and parties may demand it, but they don’t have the constitutional right to enforce those demands. This leaves the questions of the ethics of doing so, and the practical/legal questions of what could be accomplished by doing so?
Under our Constitution and its Twelfth Amendment, if no candidate reaches a majority of electoral votes (270), then the House of Representatives can pick any of the top 3 vote-getters. Thus if 37+ Republican electors vote for others, then the Republican-controlled House gets to decide who would be best. Some electors talked of voting for Gov. John Kasich, who promptly announced that he’s not interested — which raises the question of whether there’s any credible candidate who would admit that they are? Answer: of course not, because they would be attacked by those in their party who don’t want to rock the boat. The real question is: if the House asked this third candidate (let’s call him/her “Other”) would you be willing to be President if asked (and if you are President you only need fear Trump’s itchy twitter-fingers) (…oh and if you really don’t like the job, you can resign sometime after you are inaugurated and be replaced by the VP) in order to save our nation from Trump? The real answer from any politician or public servant will be “heck yes!”
In the event that Other has not been chosen by the House by the date of inauguration, then the VP-elect would be inaugurated as the Acting President. If something goes wrong with that, then the speaker of the house (currently Paul Ryan) would become the Acting President. By voting for someone other than Trump, you will simply have given the House the discretion to choose an alternative. They might still pick him when they have to start deciding on January 6th. Just as voters elected you to represent them, your voting for Other allows the Republican house to represent you…and it gives them another few weeks to evaluate the daily revelations and to judge what’s best for the country.
If you plan to vote for Other, the next question is for whom to vote for VP? The VP rules are slightly different. If neither VP candidate gets 270+ votes, then the Senate (which will also be Republican-controlled) can choose between the top two vote-getters…or, they could not choose anybody. If both the House and Senate don’t choose anybody by January 21st, then the Speaker of the House would be inaugurated as the President-elect. If you choose not to vote for Pence or Kaine, then it doesn’t matter whom you pick, since VP-Other is not going to get to 270+ votes. So if you’d like to give the Republican-controlled congress the freedom to pick Trump/Pence, Other/Pence, Ryan/??, or (if hell freezes over) Clinton/Kaine, then voting for anyone else could provide that freedom.
If you would rather have Clinton/Kaine than Trump/Pence, and if you fear that congress may become invertebrates due to the fear of Trump retaliation, then if 37 of you vote for them, you will have removed the risk of congressional cowardice.
It’s worth noting that were Clinton/Kaine elected, they would still face a Republican congress, so their power would be limited. Were it a Republican, then whomever would wield great power. One party has only controlled all three constitutional lawmaking entities — the Presidency, the House, and Senate — for six of the last sixty-one years since 1955. When the parties have to compromise to get things done, it raises their game and prevents one-sided bad legislation. Abraham Lincoln famously said “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.” Trump has already revealed his character, and that was while he was on his BEST behavior pre-election, pre-inauguration and pre-power. Remember: “Power tends to corrupt, and absolute power corrupts absolutely.”
Romney is worth considering since he is a vetted known quantity and won’t be joining the Trump administration.
Having covered the legal and political questions, one must turn to the ethical ones. Nobody likes being called “faithless,” especially people of faith who consider themselves faithful. A better term would be “conscientious electors.”
The “faithless” moniker is intended to guilt-trip the electors into doing what they are told…which is usually the right thing to do. The real question is faithful to whom or what? Your country and its constitution? Your party? Your interpretation of voter intent? The popular vote? How the country would have voted if we knew what has since come out? Your values and religion? The Electoral College itself? Your literal instructions based on the election that was manipulated by the Russians, fake news, voter suppression, lies that we are discovering with each passing day, etc.? Let’s take these one at a time.
Your party: If Trump is the President, all signs now point to it being a horror show that will cost the Republican party both houses in 2 years and the presidency in 4 (assuming we still have the right to vote and we are not under martial law). Consequently, the Republican-controlled congress would be better off picking a moderate…and almost anyone else would be more moderate.
Voter intent: Most republican voters were voting against Hilary and for their party and were not happy with their candidate, so they will probably be happier with a different choice.
Your values and religion: Trump repeatedly breaks 4 of the 10 Commandments forbidding adultery, stealing, false witness (lying) & coveting. There is no set of values or religion on the planet that condones the kind of behavior that he has exhibited.
The Electoral College itself: This is what the EC was created for. If you do succeed, the EC will have been vindicated, as will the framers of the constitution. If you don’t, the country will probably try to abolish it. The success of Trump has revealed something scary about democracy and about America, so a future demagogue will probably be a silver-tongued non-groper who will fare much better, but could be even more dangerous. It will be important to preserve the institution to protect us the next time.
Why not Trump?
The subject has been covered exhaustively, so the only value-add here is to make points or identify arguments that you might not have gotten before. The best editorial on him comes from his home-town newspaper, the Daily News.
Trump’s lies: The NYT published: “Trump proved throughout his campaign and in the month since he won that he would not only lie repeatedly, but that he could get away with it. As Glenn Kessler, who writes the Fact Checker column for The Washington Post, pointed out on Nov. 4:
“Donald Trump has amassed such a collection of Four-Pinocchio ratings — 59 in all — that by himself he’s earned as many in this campaign as all other Republicans (or Democrats) combined in the past three years.”
Trump’s 59 totally false “whoppers,” in the Kessler rating system, compare to seven awarded to Hillary Clinton.” Trump is the most prolific practiionioner of Hitler’s “The Big Lie” technique.
The main problem with pathological liars is their lying to themselves and not believing others on whom they must rely. This brought about Hitler’s demise, but not before taking 50 million people with him. Trump is already exhibiting this self-delusion trait and is damaging our relations with many other countries, especially China — before he has even taken office. We can not afford a trade war — let alone an actual war. Note that there are no legal barriers against Trump initiating a nuclear war, so this could give new meaning to “blow up the system.” However bad things are, he can make them worse.
Others’ lies: FaceBook and others decided to close the barn door after the cow had left and is now cracking down on fake news, but it was too late for this election which was swayed by the belief that the pope endorsed Trump, that Hilary was a child molester, etc. Some of that fake news was generated for profit, and some to help Trump. Either way, it was more lying.
Bait-and-switch: Trump’s appointments to his administration are far more extreme than he had let on while campaigning. They are also not even representative of the views of his voters, let alone most Americans.
It would reward Russia for hacking. Russia not only sought to get Trump elected, but they also targeted democratic house members, NOT senators. This was probably to insure that the house would be republican in case the EC did what this is advocating. When cheating occurs, it should lead to moral outrage and we should not reward it. It is analogous to rewarding violence. If there had been an assassination that turned the election, in an intentional way, the EC would the only moral firewall against rewarding violence. Putin’s political advisor who has been analogized to Putin’s Steve Bannon tweeted and posted to his FaceBook page the following after our election: “Washington is ours…”
Bad example: Donald Trump is used by non-democratic countries to show how Democracy is a flawed system. This is your chance to use the EC safeguard to disprove that.
Your credibility: Even if this strategy does not succeed, after the nightmare unfolds, you will gain respect from your community for having done the prescient thing. When congress voted on the Iraq War, it was clear that the vote would pass, but the few who voted against it were proven to have had the better judgment, which benefitted them later.
Acceptable delay: The Republican Congress has been willing to shut down the whole federal government of 800,000 workers to get their way, so they should not fear deferring the transition of just the executive branch’s leadership. Picking the right leader for the next four years is vastly more important than expediency.
Constitutional crisis?: Constitutional crises happen when there is ambiguity. Fortunately, ours is quite clear as to how to handle this.
Leading to violence?: While many of Trump’s fans are prone to violence, when the outcome is another republican, they probably won’t be too upset for long. In the alternative, with Trump’s extremist appointees and agenda, and both chambers of congress controlled by republicans who have a penchant for permanently entrenching themselves, the other side could turn to violence out of frustration if they are permanently disenfranchised.
Sore loser?: “Sore loser” would only apply if the game was truly over. It’s not. It’s going into extra innings to get the EC to do what it was created for. This is not an attempt to get Hilary elected; it’s a plea to give the House a chance to pick a better option. If the EC does the right thing here, it will be vindicated as a body, and our constitution will have been proven once again to have been brilliant. If not, we will face many years of fighting over abolishing it.
Election rigged?: If this effort succeeds, he will say, “You see! The system WAS rigged!” Actually, yes, it was rigged 229 years ago in 1787 when the constitution was signed to prevent people like him from being elected. Since the Electoral College muscle had never been flexed, we forgot it was there.
Main obstacles: The main things holding this strategy back from working are:
- the belief that it is unlikely (a self-fulfilling prophesy), and
- the fear of speaking out due to the fear of retribution by Trump, his administration or his winged monkeys on the alt-right.
When the founders of our country decided to rebel, they broke the law of their land, but felt justified by higher laws and duties. We call upon you to break your pledge, and perhaps also state law, to protect your party and your country from the kind of president that Alexander Hamilton had warned of. The Electoral College was created for this. This is your moment to justify its existence and to do what you believe is best for our great nation and your descendants, despite the haters. The definition of a “hero” is “a person who is admired or idealized for courage…” “Courage” is “the ability to do something that frightens one.” Now is your time for heroism.
For More Reading: Some Constitutional Scholars on Electoral College Voting:
Larry Lessig: And so they will decide 12/18/16
Larry Lessig: On the Ethics of Electors 12/13/16
Geoffrey Stone: Electors Against Trump Are Faithful Not Faithless 12/12/16
Carolyn Shapiro: States Can’t Stop Electors From Voting Their Conscience 12/9/16
Michael Stokes Paulsen: The Constitutional Power of the Electoral College 11/21/16
Jeffrey Tulis, Sandy Levinson and Jeremi Suri: The Hail Mary pass that could deny Donald Trump the presidency: It’s up to you, electors 11/21/16
Richard Briffault: The “faithless” elector 11/16/16
Larry Lessig: On “faithless” (but democratically faithful) electors 11/11/16
Edward Foley: How Republicans Could Replace Trump Even if He Stays In 10/9/16
Article describing resources available to Electors
One of which is: The Electors Trust