The Founding Fathers Made Electors Free to Reject Trump

The Constitution provides an emergency brake to prevent a demagogue from becoming President. Why has it become taboo to discuss using it?

Summary

The Electoral College can reject Mr. Trump and make Governor Pence, Secretary Clinton, or someone else president instead. Doing so, though unprecedented, would be a proportionate response to Mr. Trump’s candidacy. Electors should not be deterred from their Constitutional responsibility by threats of violence.


The Rationale for the Framers’ Design Remains Valid

Constitutionally speaking, Donald Trump has not yet been elected President. Though I, too, have carelessly referred to him as “President-elect Trump,” the real election — the one our Constitution entrusts with choosing the President — does not take place until Monday, December 19.

Every American is taught in civics class that what our November vote actually determines is which “electors” get to vote in the real election. It is commonly believed, of course, that electors automatically vote for the candidate nominated by their party. In this oversimplified understanding, the Electoral College is just a convoluted way of giving smaller states more say. In reality, however, the Framers clearly intended electors to exercise independent judgment, to vote as their consciences dictated.

Constitutionally speaking, Donald Trump has not yet been elected President.

Though the Framers did not anticipate the ways political parties and communications technology would transform the process, a key part of their rationale for entrusting electors with the final choice of President remains valid. Their basic rationale, in the words of the author of Federalist Paper #68, was that:

“ A small number of persons…will be most likely to possess the information and discernment requisite to such complicated investigations.”

Why would a “small number” of electors be more likely “to possess the information and discernment” required than the voting population as a whole — whether at the state or national level? For an elector, the potential decisiveness of her vote is palpable. Though sorting out the myriad factors involved in the choice of a President is extremely complex, there is no question about her motivation to give it the time, energy, and seriousness it deserves. As for the voting population as a whole, little more than half manage to vote at all, and those that do are easily forgiven for focusing their attention on their immediate problems rather than on the agonizing task of separating fact from fiction in a charged campaign. It is that stark difference in role and in responsibility, rather than any assumed difference in qualifications or intelligence, that makes the electors’ decision more reliable.

Texas elector Art Sisneros: “I honestly still have not made my decision yet.”

So while it is true that electors are not necessarily chosen for their expertise,[1] they need not feel timid if their considered judgment is that the popular favorite is unfit to be President. They are the jury, selected from among their peers to dedicate their attention to this decision. A jury — conscientiously absorbing the evidence and analyzing it carefully for the full duration of the trial — does not feel embarrassed if a poll of television viewers watching daily highlights comes to a different conclusion. It does not insult the intelligence or moral character of their fellow citizens to trust their own assessment of the candidates. Assessing the candidates is the job that “We the People” gave them, their job description spelled out in the Constitution.

Extraordinary Times Call for Extraordinary Measures

The historical fact that electors have almost always followed the lead of voters in their states is not necessarily the result of an unwritten rule saying they must do so. There is a simpler explanation: electors, chosen by their political parties for their party loyalty, have chosen to vote accordingly because there was no reason not to. That is, electors have almost always judged their party’s candidate for President to be qualified, truthful, and steady — a safe choice to lead our country and (since 1945) the free world.

But electors clearly remain empowered to exercise discretion when circumstances demand it.[2] To the extent there is an expectation that electors normally vote as expected, voting conscientiously in an extraordinary circumstance would not undermine that norm. But to what extent can it be said that Donald Trump — and no previous President — represents the type of candidate the Founding Fathers were anxious to prevent?

Let’s first look at what, specifically, the Framers worried about, in their own words. In Federalist #1, Alexander Hamilton remarks that “of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” Later, in Federalist #68, he describes how the Electoral College’s design would make it resistant to mere “talents for low intrigue, and the little arts of popularity,” so “that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” Hamilton expresses confidence that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” He also addresses a specific concern about “foreign powers” having improper influence.

Electors clearly remain empowered to exercise discretion when circumstances demand it.

Now consider that Donald Trump’s candidacy is unprecedented in several ways — with literally no precedent in the 228 years since George Washington was elected our first President. Any one of the following signs, alone, would be sufficient to establish these as historically extraordinary times with the respect to the concerns of the Framers:

  • The USA Today Editorial Board had never before made an endorsement in any presidential race until it declared Mr. Trump “unfit for the presidency.” A number of other newspapers known for reliably endorsing Republicans likewise refused to endorse Mr. Trump, citing his “dangerous lack of judgment and impulse control” and calling him “narcissistic and morally bankrupt.” Seen as a whole, the consensus against Trump is unprecedented:

By December 19th, electors will have an even clearer picture of how Mr. Trump actually intends to govern than was available to voters in the November 8th election. If it becomes increasing clear that he intends to govern as an authoritarian, it may no longer be surprising at all if a number of conscientious electors decide to stop him in order to preserve our Constitutional form of government.


Electors Must Not Bow to Threats

Whatever your opinion of how electors should vote, we can all agree that their choices should not be constrained by threats of violence. That is true with respect to the unhinged individuals who are apparently already emailing some of them death threats. It is also true with respect to the charge that electors would be responsible for any violence in retaliation to their conscientious rejection of Mr. Trump.[3]

If awareness of the possibility of conscientious electors is allowed to be discussed openly over the next four weeks, it would no longer be perceived as such a shock on December 19th. As recently as 2000, an election was decided by a similarly unexpected turn of events, and the country showed itself capable of maintaining calm and moving forward. To the extent fears of violence in 2016 are heightened by the fervor of Mr. Trump’s supporters, that cannot be allowed to sway electors’ decisions. There is a word for yielding to threats of violence in the futile hope of indefinitely putting off the inevitable: appeasement.

In any case, there is no harm in educating the country about the reality of the Electoral College our Founders gave us and preparing for its possible decisions. Electors will make the final call, but we should aim to secure for them the freedom our Framers intended by explaining the legitimacy of their independent discretion. In brief, depending on how electors vote, they could directly make Secretary Clinton, Governor Pence, or someone else the president. Or they could force the House to make the final decision among the top three candidates chosen by electors.

We can all agree that electors’ choices should not be constrained by threats of violence.

In making their decision, electors should have a clear-eyed picture of the likelihood that a President Trump could be hemmed in by other “checks and balances” if they relinquish their own. Impeachment and removal from office, in particular, appears highly unlikely to be in the interests of the Republican House and Senate. The Framers foresaw that Congress “might be suspected of too great devotion to the President in office” (Federalist #68). They saw the “transient existence” of the Electoral College, in contrast, as aiding its independence, making it neither subject to corruption beforehand nor unduly influenced by the imperatives of securing reelection afterwards. Accordingly, the Framers provided this “special body of representatives, deputed by the society for the single purpose of making the important choice.”

Alexander Hamilton shortly after the American Revolution

Notes

  1. As a 1952 Supreme Court decision bluntly put it, “Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities.” But the wisdom in entrusting the final decision to a smaller number of people remains.
  2. In 21 states, it is absolutely clear that electors may exercise independent judgment as the Framers intended. The other 29 states (and D.C.) do attempt to force their electors hands, but these restrictions are either explicitly not legally binding (pledges to political parties) or of questionable legal status because the Supreme Court has never ruled on their constitutionality. (Here is the most thorough legal analysis I have come across.)
  3. There is irony here on several levels. There was previously a fear of violence if the November election did not go Mr. Trump’s way, since he had flippantly predicted a “rigged election” for weeks beforehand (predictably abandoning that rhetoric when events went his way). Even further back, when it briefly appeared that Mr. Romney had won the 2012 popular vote, Mr. Trump explicitly called for a “revolution” over the injustice of the Electoral College. Needless to say, he came to view our Constitution’s process for electing presidents differently after winning the majority of electors himself despite losing the popular vote. Is not Mr. Trump’s flirtation with violence and casual disregard for our core institutions just as strong a reason for electors to reject him as it is an inducement to go along with him, if not stronger?

h/t: Lessig, James J. Heaney, Michael Signer, and Peter Beinart.