It Ain’t Over ’Til It’s Over: A Hail-Mary Strategy To Change the Electoral College Before December 19

It’s going to take more than a change.org petition

Promotional still from the 1939 film Mr. Smith Goes to Washington, published in National Board of Review Magazine

We have got to change the Electoral College.

Not way in the future. Not “never again.” Now. Right now. Before December 19.

Crazy? Yes. Crazy like a fox? No. It’s an extreme long shot, and if it works it will be nothing short of miraculous. But we’ve still got to try. The alternative is Trump and Pence taking office and doing whatever it is Trump and Pence do for four years, instead of Hillary Clinton, who most likely won the popular vote by quite a lot. (As of this writing, there are still 7 million votes left to count.)

You thought the election was over because CNN called it? No. You thought it was over because Hillary Clinton gave a concession speech that was in no way legally binding? No. The election is not over until the Electoral College meets. And maybe not even then, but I’ll get to that later.

Let’s take some totally legal advantage that is in no way cheating, because it’s part of the rules.

By Gage (2012 Electoral College map) [CC BY-SA 4.0 (http://creativecommons.org/licenses/by-sa/4.0)], via Wikimedia Commons

This is something we have to do on a state-by-state level, pretty much exclusively in the red states on that map up there. (I know! You’re reading this in New York and California! What are you going to do? You’re going to get on the phone to people you know in those red states, even though you hate making phone calls.)

You’ve heard about faithless electors, presumably, and you’ve heard people dismiss them because they’re unlikely. But we need to dismiss them for another reason: faithless electors don’t work. On January 6, 2017, the Congress meets to affirm whether the electoral college vote was “regularly given.” If faithless electors materially affect the outcome of the election, Congress (a Republican congress) can say “nope” and re-litigate the whole thing. That’s one of the checks and balances in the Constitution. (Time Magazine has a good and longer explanation of this from before the election, back when it seemed more like fun trivia.)

What we need are faithful electors, voting the way their state government told them to. Which means we have to change the minds not of electors, but of the members of the governments of individual states. States can tell their electors to vote all kinds of ways. Maine and Nebraska each split their vote when it’s relevant. (On the map up there, you see that little red 1 in Maine.) Ten states plus the District of Columbia have signed on to legislation called the National Popular Vote, which is exactly what it sounds like. It awards the state’s votes to the winner nationally, regardless of how the state itself voted.

Those 11 voting districts all went blue this election, so it doesn’t help us right now. Except it does, because it is still a million times faster than trying to push through a Constitutional amendment, and it provides us with draft legislation if a statehouse agrees to consider it. Time is of the essence.

If you’re in a red state, and you’re a Democrat, or a third-party voter who prefers Hillary to Trump, or a Trump voter who is aghast at Trump’s appointment of white nationalist Steve Bannon, you need to be on the phone to your state senator and your state representative. You need to be showing up at their offices. You need to be protest marching not just down main street, but to the statehouse. Don’t know who your state representative and state senator are? Find out. Legislature’s not in session? Bug them to call an emergency session.

As for what exactly you’re asking for… this is where it gets tricky. You know your state legislators. (If you don’t, do the research. Immediately. And forever from now on.) You know your states. What would be persuasive to them? What would they bend on?

  • Are they annoyed the state gets ignored during campaigns because it’s too reliably red? Are they receptive to the idea that the state is big and full of competing interests, and the vote should reflect that as the state starts to go purple (which puts them in a position to not lose all of it when it flips blue)?
  • Are they worried about the rise in racial violence since the election, and eager to put the genie back in the bottle?
  • If you’re in a city that was an island of blue in a sea of rural red, are your state representative and state senator Democrats who might be ready to make some noise if they knew it would mean more votes and more campaign contributions in the next few years?
  • Are they Libertarians who are deeply uncomfortable with Trump, and with the notion of going against the popular mandate?
  • This one is really specific: If we use the electoral college, a vote in Vermont is worth literally 3.5 times more than a vote in Texas. That’s not right, y’all. Texas needs to kick up some dirt. Show me a Texan who loves Trump more than Texas. Can’t be done.

Understand that for your state legislator, bringing forward this proposal — whether it’s splitting the state’s electors, or giving the state’s electors to Hillary whole hog, or simply declining to give votes to Trump — is politically risky. It changes the trajectory of the legislator’s career. In the next election, any Democrats will be branded as opportunists, Republicans as traitors.

Some of them will be into the “outsider” cachet, but understand that this is a big ask. They will probably say no. You will need to keep bugging them, and they will still probably say no. A few things might help. You can let them know that they won’t be alone, by showing that our massive popular outreach extends to other statehouse members (which it will have to in order to work). You can promise that you and all your friendly acquaintances will turn out for a brave legislator in the next election no matter what, crossing party lines if necessary.

You can remind them that, as created by the Founding Fathers, the role of an elected official — and of the Electoral College — is one of heeding the people, but also of “standing up with generous fearlessness against the clamor of the mob.” (That turn of phrase is Teddy Roosevelt describing his admiration for Alexander Hamilton.)

We’ve got a real ugly mob that took November 8’s results as a license to come out of the woodwork with what they interpret as a national mandate for their racist agenda. We have a chance right now, and only right now, to pull the rug out from under them, and show them that all the Trump voters who’ve said they didn’t vote for racism mean it. We have a chance right now, and only right now, to say it’s not ok to give the highest office in the land to the person who got fewer votes instead of the president chosen by the people.

It probably won’t work. But we lose nothing by trying, and gain magnitudes if we win.

Get going.


I’ve muted comments on this post, for obvious reasons. But I’ve made an imaginary Q&A you can check to see if it addresses your concerns.

Q. This sounds extremely hard and scary. I want to do something, but I’m intimidated.

A. If this is something you want, it’s not enough to put your name on a Change.org petition wish list and hope Santa brings it to you. You’re going to have to do the work. (You can also sign the Change.org petition; there’s no reason not to do that. But it isn’t enough.)

When the Founding Fathers decided to reject their lack of representation, and signed a declaration of independence, they were staring down an actual army, with guns, that was part of an angry empire which viewed them as traitors and wanted to hang each of them from the neck until dead. When the Freedom Riders bussed through the South to enroll voters in biased elections they would still probably lose, they knew they’d be jailed and beaten. Some of them were murdered.

But you don’t want to demand that the popular vote count for something, because it could mean mild social embarrassment? Somebody might call you a baby, a sore loser, say they’re disappointed in you? Get your head in the game.

And don’t assume Republicans are scary people. You may be surprised by the welcome you get. Plenty of them refused to endorse Trump, especially at the state level. You don’t generally become a career politician unless you care about your community.

Q. Hillary and Obama and Elizabeth Warren have all said we need to accept that Trump is president.

A. Of course they did, are you kidding me? If one of the leaders of the Democratic party told us to do this, or even implied that they wanted us to do this, it would be a coup. This has to come from the people.

Besides, this is the long shottiest of all long shots, and we need them to be preparing for a likely Trump/Pence administration, getting into the most advantageous and influential negotiating positions. They don’t need to be wasting their political capital on this wild and quixotic effort. We are bound by no such responsibility. We love wild and quixotic, and our being wild and quixotic only improves their leverage, even as scolding us about it also improves their leverage.

Q. I know Hillary won the popular vote; I’ve heard the figure is projected to be something like 2 million more votes than Trump. That matters to me. But I still don’t like her.

A. That’s ok, because both houses of Congress will still be Republican. She’s not going to be able to pass legislation you don’t like, or appoint liberal Supreme Court justices. Meanwhile, many of the things you were worried she’d do — continue Obamacare, carelessly pass national security information to the Russians — are stuff Trump has now revealed he’ll also do. You’re breaking even, here.

Meanwhile, Hillary will veto Paul Ryan’s plan to defund Medicaid. That’s pretty important. And depending on what you can get your statehouse to agree to, you’ll be preventing Electoral College skullduggery in the future. Do you remember being scared in 2012 that this same thing had happened to Romney? Turned out it hadn’t. But you wouldn’t have to worry about it again.

Q. I’m a proud Democrat, but I’d rather have a witch hunt within the party about how we would have won if we’d focused more on my pet issue.

A. Nobody’s stopping you! Nobody’s stopping you, apparently. Knock yourself out. But do this Electoral College thing too.

Q. Are you a member of the Illuminati?

A. The Illuminati don’t admit women. Or discuss their plans in public like this. But maybe you should run this post through some anagram software, and then look for letter frequency patterns. Just to be safe, you should probably obsess over it for the next several weeks. Don’t even leave your home. This is important.

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