Democracy in Crisis: Electors Must Vote Their Conscience on December 19th

I am one of the many millions of Americans closely following the unprecedented and disturbing series of events involving the 2016 U.S. presidential election. Never in American history has a person obtained the position of president-elect under such suspicious circumstances and demonstrated numerous conflicts of interest as has Donald Trump.

The Electoral College and its 538 national electors will meet on December 19th to place their votes for the next president of the United States. I firmly believe that the Electoral College has the power to protect the future of democracy, to uphold the principles of the Constitution, to prevent the United States of America from becoming a wasteland of forgotten democratic principles.

This article includes some of the many reasons a Donald Trump presidency threatens the future of democracy and the conflicts of interests that will put Trump in violation of the Constitution on day one. This article also covers some of the unprecedented events that have cast a dark shadow on the 2016 presidential election.

I’m hopeful that this article will help make a case for electors to vote their conscience, to vote against Trump.

This article is divided into sections for easier reading. You can page down to the sections that interest you:

  • “The Election is Rigged.”
  • Breaking News: Russia Interfered with the Election
  • Article 1, Section 9 — Emoluments
  • Trump’s Actions Since Becoming President-Elect
  • The Threat to Civil Liberties
  • Alexander Hamilton’s Federalist Papers № 68
  • America’s Undemocratic Election System
  • Recounts, Audits, and a New Election
  • Electors Must Vote Their Conscience

“The Election is Rigged.”

Donald Trump regularly claimed throughout his campaign that “the election is rigged.” As it turns out, his claims of a rigged election may be accurate. There is growing evidence that the election was in fact rigged; however, it was rigged against Hillary Clinton, not Trump. In fact, this past Friday, The Washington Post broke the news that Russia interfered with the election to help Trump win. More about this news in the next section.

Leading cyber security and computer experts have documented and reported that America’s voting machines are vulnerable to malware and other security breaches, despite the fact voting machines are not connected to the Internet. The experts recommend that paper ballots alone be used ensuring the security and integrity of all U.S. elections. 
 
Many states use voting machines that are either paper ballot only or computer voting with a paper ballot backup. Very few states, however, conduct vote audits to confirm that the machine totals match the totals of the paper ballots. Numerous vote count errors and irregularities in key battleground states have been and continue to be reported.

Adding fuel to the fire is the interference with the Dr. Jill Stein-initiated recounts in Michigan, Wisconsin, and Pennsylvania, not to mention Trump’s numerous tweets about the recounts. Trump’s legal team filed objections to the recounts in all three states, and Bill Schuette, the Michigan Attorney General, filed a lawsuit to block the Michigan recounts.

There are reports that some Wisconsin counties blocked recount workers’ access to ballots. In Michigan, there are reports that Trump lawyers and volunteers with challenge scripts in hand hovered over recount tables and challenged every step of the recounts automatically. There is also the Michigan law that votes aren’t to be recounted if mismatches occur between the machine numbers and the ballots. These are just a few examples of the election irregularities that fuel the belief that the election is fraudulent.

When you consider the Trump team’s objections to the recounts and the unprecedented external influences that plagued Hillary Clinton’s presidential campaign, the belief that the election is rigged is not unfounded. The external influences that interfered with Clinton’s presidential campaign alone make a strong case that the election was rigged in favor of Trump:

  • Russian interference via WikiLeaks, “this was a conscious effort by a nation-state to attempt to achieve a specific effect,” said NSA Chief Admiral Michael Rogers during a recent WSJ interview.
  • The announcement by FBI Director James B. Comey that unnecessarily revived the Clinton private email server controversy 11 days before the election.
  • The proliferation of fake news on media sources such as Facebook, Google, and Twitter. Thus, many voters made (and continue to make) political decisions based on misinformation and propaganda. Some people are still spreading the Clinton #PizzaGate fake news story on social media.
  • The gutting of the voting rights act leading to the closure of more than 800 polling places across the country, legislation enacting various voter ID laws, and interstate crosscheck programs disenfranchising millions of voters. There are some studies that voter suppression laws primarily disenfranchise minority voters and the poor, many of whom tend to vote for Democrats.

Breaking News: Russia Interfered with the Election

This past Friday, The Washington Post broke the news that the C.I.A. has determined Russia interfered with the election to help Donald Trump win the presidency. News of Russian interference involving the election is nothing new. USA Today reported that Russia directed the hacking of the Democratic National Committee (DNC) and the subsequent WikiLeaks email releases. However, Russian interference for the express purpose of helping Trump become president is breaking news and should alarm every single American citizen.

What’s more alarming, is the Trump transition team’s reaction to an official U.S. intelligence agency’s determination that Russia interfered with the 2016 presidential election. Shortly after the news broke, the Trump transition team released a brief statement:

“These are the same people that said Saddam Hussein has weapons of mass destruction. The election ended a long time ago in one of the biggest Electoral College victories in history. It’s now time to move on and ‘Make America Great Again.’”

According to CNN, General Michael V. Hayden, former director of both the N.S.A. and C.I.A., said about Trump “To have the president-elect of the United States simply reject the fact-based narrative that the intelligence community puts together because it conflicts with his a priori assumptions — wow.”

Trump has had few briefings with U.S. intelligence officials since becoming president-elect instead relying primarily on other sources for U.S. intelligence. If Trump only relies on himself and a few select members of the GOP as sources of intelligence, he could do a great deal of damage to U.S. diplomatic relations and national security.

For example, Trump’s phone call with Taiwan president Tsai Ing-wen may cause a significant rift between the United States and China. Before Trump’s call, Leaders of the U.S. and Taiwan have had no such communication since 1979.

China flew a nuclear bomber over South China within one week after Trump’s reckless phone call with Taiwan’s president. According to a The Independent news report, officials said “it was the first long-range flight along the demarcation line in more than 18 months” and “it was designed to send a message to the incoming administration.”

Considering Trump recently encouraged Russian hacking, a comprehensive investigation must be conducted to determine if Trump has been and continues to be in collusion with Russia. In July, during a press conference in Doral, Florida, Trump specifically referred to Clinton emails that were turned over to the State Department:

“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens.”

The Washington Post report mentions that some Republicans including Senate Majority Leader Mitch McConnell did not want information about the Russian election-related interference to be released to the public before the election. NPR reported that the Republican National Committee’s computer systems were also hacked, but any information that may have been obtained has not yet been released.

President Obama has ordered a detailed review of the Russian election-related hacking attempts. He requested that the report be submitted before he leaves office in January 2017. Some members of Congress are calling for an investigation of the Russian interference with the election including Republican Senator John McCain of Arizona, Republican Senator Lindsey Graham of South Carolina, Incoming Democratic leader Chuck Schumer of New York, and Democrat Senator Jack Reed of Rhode Island.

President Obama, the Senators mentioned above, and other members of Congress who have joined the call for an investigation of Russian interference with the election deserve much credit. Trump has dismissed the C.I.A. report altogether and so far, few members of Congress have voiced an opinion on the matter.

POLITICO reported that Devin Nunes, House Intelligence Committee Chairman and a member of Trump’s transition team, said that his committee will not launch a new investigation regarding Russian election-related interference and that “We will also closely oversee the production of the report on these attacks requested by President Obama to ensure its analytical integrity.”

The New York Times reported that McConnell and House Speaker Paul Ryan have called for an inquiry of the Russian election-related hacking. However, neither McConnell nor Ryan are calling for a special select committee. McConnell said that the Senate Intelligence Committee was “more than capable of conducting a complete review.”

The idea that any investigation into Russian interference with the election, interference in which Trump was aware of or may have been a participant, would be overseen by Trump allies, is alarming.

It seems highly unlikely that President Obama will receive a comprehensive and accurate Russian election-related interference report under the circumstances mentioned above.


Trump’s Actions Since Becoming President-Elect

Trump has taken numerous actions that demonstrate unprecedented conflicts of interest and threaten to roll back decades of democratic, societal, diplomatic, and environmental progress. For example, in the short time since becoming president-elect, Donald Trump has:

  • Agreed to pay $25 million to settle three Trump University lawsuits. In fact, Trump has been involved in approximately 3,500 legal actions (federal and state) within the past three decades, and more than 60 lawsuits involving Trump are pending, according to USA Today.
  • Appointed his children, who continue to operate Trump’s businesses around the world, as members of his presidential transition team, an unprecedented conflict of interest. Trump’s children are supposed to be running his businesses to help eliminate conflict of interests. Yet one or more of his children have been in nearly every one of his president-elect meetings.
  • Admitted (via Trump Foundation IRS filing) to violating the legal prohibition against “self-dealing.”
  • Involved his daughter Ivanka, who is in charge of the planning and execution of Trump’s worldwide network of hotels, with discussions with foreign leaders (Argentina, Japan, Turkey), an off the chart conflict of interest.
  • Not released any of his tax returns, a vital source of information as to his possible debts to foreign or domestic banks and other conflicts of interest. For example, Trump owes millions of dollars to Deutsche Bank. Federal regulators are seeking a $14B fine from Deutsche Bank to settle toxic mortgage claims, and the bank is negotiating a settlement with the DOJ. Mother Jones has published a list of Trump’s debts.
  • Selected Steve Bannon, former head of Breitbart News and white nationalist, as his chief strategist, a move praised by former Ku Klux Klan (KKK) leader David Duke.
  • Selected Senator Jeff Sessions as attorney general. Marge Baker, executive vice president of People for the American Way, is quoted in a recent New York Times article saying about Sessions “He’s one of the most strident anti-immigrant, anti-Muslim, anti-L.G.B.T. voices in the Senate.”
  • Selected Oklahoma attorney general Scott Pruitt, a climate change denier, and fossil fuel industry ally, to head the Environmental Protection Agency.
  • Selected retired Army Lt. Gen. Michael Flynn as National Security Advisor. Flynn has been criticized for posting fake news stories and conspiracy theories on Twitter.
  • Selected Rex Tillerson, Exxon Mobil Chairman and CEO, as Secretary of State. Tillerson was awarded the “Order of Friendship” by Vladimir Putin in 2013.
  • Embarked on a “Thank You” victory tour holding rallies in select cities across the U.S. As far as I can tell, Trump is the first president-elect in American history to hold victory rallies. Highly unusual for an American president-elect, not so unusual for an authoritarian style leader.

These are just some of the actions Trump has taken since becoming president-elect on November 9th.


The Threat to Civil Liberties

Donald Trump ran a presidential campaign that incited racism, sexism, and xenophobia. His campaign was one of demagoguery and authoritarianism where only he alone could fix America’s problems and “make America great again.”

Trump is now the president-elect and continues to operate very much as he did throughout his presidential campaign; and like a true authoritarian, Trump does not tolerate dissent from American citizens.

Trump uses his Twitter account to retaliate against those who contradict or oppose him. This past week, Trump attacked via Twitter Chuck Jones, president of United Steelworkers 1999, who had told a Washington Post reporter that Trump’s statement that he saved 1,100 Carrier worker jobs is false. Shortly after Trump’s tweet, Jones began receiving threatening phone calls from Trump supporters.

It’s not only individual citizens that Trump targets with his Twitter account, but also individual businesses. Trump recently targeted Boeing and Lockheed Martin posting tweets that caused the stock market value for both companies to drop billions of dollars temporarily.

Trump is using his Twitter account to intimidate and control individual citizens and corporate America. The concept of a president using Twitter and other social media platforms to go after individual citizens as well as businesses should gravely concern all Americans.

Trump also regularly threatens American Citizen’s right to freedom of speech and freedom of assembly. Trump’s first tweet as president-elect disparages anti-Trump protesters and the media in one fell swoop: “Just had a very open and successful presidential election. Now professional protesters, incited by the media, are protesting. Very unfair!”

This past week, The Washington Post reported that the Washington Monument, the Lincoln Memorial, and other historical places for dissent would not be open for protestors on the day of the Presidential Inauguration. Also, an omnibus blocking permit has been filed to prevent protests from taking place on specific DC locations for weeks before and after Inauguration Day.

Organizers of the Women’s March on Washington had planned on marching in some of the areas that are now blocked off for presidential inauguration activities. The organizers have secured a new starting point for the march which will take place on January 21, 2017, the day after the inauguration.


Article 1, Section 9 — Emoluments

Ethics lawyers from both sides of the aisle agree that the Electoral College must reject Trump on December 19th if he does not agree to sell all his businesses and set up a blind trust. In fact, Norman Eisen, Chief Ethics Counsel for Barack Obama, recently told ThinkProgress that “Electors should insist that Trump set up a blind trust as a condition of their vote.”

Trump has continued conducting global business dealings absent of a blind trust; the Manila Project, Trump-branded luxury apartment complex project near Mumbai, the Washington D.C. Trump hotel, are just the tip of the iceberg when it comes to potential conflicts of interest.

Trump recently stated via Twitter that “legal documents are being crafted which take me completely out of business operations.” Trump said he’s taking himself out of business operations, NOT ownership. Trump also intends on having his children run his businesses and be involved in government affairs. The Washington Post reported that Trump has said he will do “no more deals” during his presidency, a notion that Eisen says “makes no sense whatsoever.” Trump will still retain ownership of his businesses.

Absent a blind trust, the removal of his children from all government affairs, and complete divesting from his businesses, Trump will be in direct violation of Article 1, Section 9 (emoluments) of the Constitution on day one of his presidency:

“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

The Office of Government Ethics (OGE) has issued a letter (PDF) reiterating its position that Trump must completely divest from his businesses. Trump’s statements about taking himself out of business operations and not doing any new deals are not adequate measures. The OGE letter states that “Divestiture resolves conflicts of interest in a way that transferring control does not.”


Alexander Hamilton’s Federalist Papers № 68

In recent decades, the Electoral College has been treated as though it were merely a symbolic institution, its only purpose to rubber stamp election results. This is not how the founding fathers, many of whom helped draft the Constitution, intended the Electoral College to operate. The Electoral College was created as a safeguard to prevent the office of the president from being held by a person who is unqualified, a demagogue, or under foreign influence; Trump is the trifecta.

In March 1788, Alexander Hamilton drafted the Federalist Papers. Federalist Papers № 68 expressed concerns that an unfit individual or a charlatan could become president:

Hamilton’s Federalist Papers № 68 is implicit in that electors must act “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.”

Investigations are certainly warranted in this case. The Hill reported that Senate Minority Leader Harry Reid believes national electors should receive an intelligence briefing regarding the Russian election-related interference before they cast their vote on December 19th.

29 states have laws in place that serve to bind electors from exercising their independent judgment; these laws are unconstitutional. There are several precedents involving conscientious electors (also known as faithless electors). One such precedent is the 1952 U.S. Supreme Court Case №649 Ray vs. Blair. The court ruled that electors have the right and duty of expressing free will.

Referencing Alex Hamilton’s Federalist Papers № 68, Justice Reed wrote about the court decision saying that “no one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the best men qualified to the Nation’s highest offices.”

The Electoral College must play a crucial role in the 2016 presidential election, the role for which it was created; to prevent the office of the president from being held by an individual who is not only unfit but also unable or unwilling to uphold the principles of the Constitution.


America’s Undemocratic Election System

The 2016 presidential election has brought to light the undemocratic nature of the Electoral College, a system that allows a small group of swing states to decide the outcome of presidential elections, ignoring the will of the people who reside in states where the value of a vote is significantly lower. 
 
Daniel Brezenoff explains on Medium that the Electoral College was established primarily as a means to protect Slavery. At the Constitutional Convention held in May 1787, James Madison argued that if the president were to be elected based on popular vote, residents of the Northern states would vote to eliminate slavery. 
 
The Electoral College is an antiquated system that distributes voting power based on land instead of population. In a presidential election, “it takes 3 1/2 Californians to equal one voter in Wyoming, and 3 1/2 Texans to equal one voter in Vermont,” according to Brezenoff. Voters must be equally valued in every state.

While it’s true that millions of voters chose Donald Trump to be the next president of the United States, millions more did not. Trump won the electoral vote, the representative votes cast by each state; however, Clinton won the popular vote, the actual votes received by each candidate. In fact, Clinton won the popular vote by more than 2.8 million votes.

More Americans voted for Hillary Clinton, a candidate who possesses the experience, knowledge, and demeanor worthy of the presidency, than voted for Trump. Also, Millions of Americans chose to stay home or vote for a third-party candidate rather than vote for Donald Trump or Hillary Clinton.


Recounts, Audits, and a New Election

Millions of voters are deeply concerned about the rising number of reports regarding vote count irregularities and disenfranchised voters. Some voters have created petitions demanding vote recounts and calling for a new election. Millions of Americans will be unable or unwilling to accept the results of the 2016 presidential election until a complete vote recount and audit is conducted in every single state, or at minimum, key battleground states.

Considering Friday’s breaking news about Russian interference to help Trump, vote recounts and audits will not be enough to quell the overwhelming suspicion felt by millions of voters; voters who firmly believe the election was rigged to help Trump win. President Obama or the Supreme Court of the United States should postpone the presidential inauguration to a later date and mandate that all 50 states participate in a new election using paper ballots.

The American people need and deserve a new presidential election, one where votes are placed by paper ballots only and manually counted; an election that is conducted uniformly in every state. In fact, a new We the People petition calling for a new election was created only a few days ago and already has more than 19,900 signatures.


Electors Must Vote Their Conscience

Even if President Obama or the Supreme Court respond to the millions of Americans calling for a new election, the new election would not occur until after the national electors vote on December 19th.

Trump has neither a mandate nor did he win the popular vote. While I believe that Clinton is the best choice, electors could choose a different Republican for president; an action that is still in the best interest of the country. It could be Ohio Governor John Kasich, Senator Lindsey Graham of South Carolina, or perhaps even Mitt Romney.

POLITICO reported that the RNC is conducting a whip operation to lock down electors votes for Trump. Salon reported that electors are being pressured by Trump’s campaign to vote for Trump under “threats of political reprisal.” The pressure electors are receiving from the RNC and Trump’s campaign team is undemocratic, and the threats of political reprisal may violate 18 U.S. Code § 872.

Hamilton’s Federalist Papers № 68 clearly states that electors are to be free to use their independent judgment when casting their vote. State laws that have been enacted to bind electors are unconstitutional, and electors should not be forced to adhere to them. Electors are not supposed to vote based on partisanship, but solely on the merits of the candidate.

The plea being made by millions of Americans for electors to vote their conscience is not about politics or partisanship. It’s about putting the good of the country ahead of party, it’s about preventing the destruction of American democracy, it’s about preventing the annihilation of our country.

The 538 national electors have a crucial choice to make. That choice will determine if the 2016 Electoral College will go down in history as the institution that performed its constitutional duty by preventing an unqualified, conflict of interest-prone, Constitution-violating individual from becoming the next president of the United States, or failed the American people by putting a rubber stamp on the results of an election where there is circumstantial and C.I.A-confirmed evidence of Russian interference and numerous voting irregularities.

I sincerely hope that national electors have been paying close attention to the unprecedented events and circumstances involving the 2016 presidential election and that every elector will choose to vote their conscience, will choose to vote for the good of the country and democracy.

If you are an elector and want to vote your conscience but are concerned about the consequences, there are lawyers who are offering electors free counsel.