A Case for Faithless Electors
The United States presidential election isn’t quite over. Though voting ended on the night of Election Day, it is the Electoral College — not directly the people — who have the final say in who will be the next President. Here is a well-known fact: Hillary Clinton won the popular vote by, it seems, over two million votes. Yet, Donald Trump is leading in the Electoral College, which traditionally is a winner-take-all system, where the winner of the popular vote in a given state receives all of its Electoral College votes (except in Maine and Nebraska). The votes are apportioned between the states based on their number of representatives to Congress. Says the Constitution in Article II, Section 1:
1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows
2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The members of the Electoral College will cast their votes on December 19. Here’s the catch: Electors don’t have to vote based on tradition, which is, casting their vote for whoever won their state. Certain states levy a minor fine on Electors deviating from this, but it is very possible to not vote for whoever won one’s state. Faithless Electors, though not common, have sprung up over the years, mainly to protest the system or specific candidates.
Now is the time for more.
This essay is not about the policies of Donald Trump, but rather, why he is constitutionally unfit to be President, why his election and Presidency undermine our democracy, and why, based on this, Electors should switch their vote in order to preserve our liberal democracy, and in doing such, maintain the possibility to further improve it.
To the Electors:
Tradition can be important, but so can be intent. The Electoral College was designed to serve a role, but for over two hundred years our democracy has greatly evolved. One could argue that the Electoral College is now not serving its original purpose, but is rather simply blindly following tradition that, at this time, is not aligned with its original intent. Over the years, Electors and the College as a whole have, by and large, submitted to voting for the winner of the popular vote for each individual state, if not for the entire nation (up until now, only three times has the popular vote not aligned with the winner of the Electoral College). But is this how it should work? Should Electors follow this tradition without question?
Our nation is a Republic, not a direct democracy. The reasons for this, and for the Electoral College’s existence, were laid out by Alexander Hamilton, one of the Founding Fathers. He elaborates in the Federalist Papers why a Republic is appropriate:
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.
Nowadays, there are plenty of people who would disagree with the College’s existence, but for now, it remains: a body of people, intended to play a reasonable role and have the information and discernment to choose the next President.
Hamilton continues in the same paper, with a comment that, for many people, rings prescient:
The process of election affords a moral certainty, 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. 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.
In other words, without the Electoral College, popularity, rather than talent, could be enough to loft a person to the presidency. The Electoral College is in place to hedge against this possibility, to act as a barrier when someone has won the popular vote to ascend to the nation’s highest office, but doesn’t possess the qualifications to do the job well. Here is an apt reminder: Donald Trump has never once held elected office. He was catapulted into the political spotlight thanks to his wealth and popularity. He has not done much in the way of outlining solid policy proposals. Many would argue that he fits the mold of “not in an eminent degree endowed with the requisite qualifications.”
Now, let’s turn beyond discussions on the role of the Electoral College and talk about something that I presume you care deeply about: the future of the United States and its enduring position as an evolving liberal democracy.
Donald Trump is a threat to liberal democracy. We should make no mistake: the United States is not immune to disaster. Like other nations, this country could fall, in the wake of economic woes, into the thralls of a ruinous leader. Our form of government is dependent on engagement and vigilance.
In part, Donald Trump has been threatening our form of governance even before taking office, due to his likely unconstitutional business entanglements that he has been hesitant to fully disengage from. Already, Trump has been using his position as President-Elect to pursue business opportunities and secure agreements for himself. As one example, when meeting with British politician Nigel Farage, Trump took the opportunity to oppose offshore wind farms that he believes will mar the view of his golf course. It is not in the interests of United States citizens, or indeed, citizens of other countries, to mix governmental and personal business negotiations. Moreover, this abuse of power is likely unconstitutional as many legal experts agree it violates the Emoluments Clause (Article I, Section 9), which prohibits office holders from accepting Titles of Nobility, but also presents and emoluments (“the returns arising from office or employment usually in the form of compensation or perquisites” — Merriam-Webster). Many government employees are familiar with these kinds of rules: strict prohibitions are often in place to prevent employees from receiving any sorts of payment or gifts in the course of performing their duties. Trump, in the course of his duties, has been seeking advantage for his business. It must also be pointed out that his companies do business with foreign government-owned entities and associated peoples. Ethically, and constitutionally, this is a dangerous mess. Trump has now said he will leave his business interests (details pending), however, damage has already been done. Trump commented earlier, “the president can’t have a conflict of interest,” which is false. He has already curried favor via his elected position for his business interests and demonstrates a dangerous lack of understanding, or desire to properly understand, ethics and governance. Furthermore, his children, who actively participate in the leadership of the Trump business empire, are on the transition team executive committee, and indeed, have been sitting in on meetings with foreign leaders.
Along the lines of foreign interference and threats to liberal democracy, let’s turn to Russia’s involvement in the election. Russia’s president, Vladimir Putin, is not exactly a friend to the idea of liberal democracy, having orchestrated a constitutional “clarification” to allow himself more presidential terms, controlling a Duma (Russia’s lower legislative house) that is made up three quarters by his ruling party (United Russia) with the remainder consisting of largely compliant other parties, and having shut down independent media sources and relying heavily on state-run channels to broadcast his message.
Throughout the election, there were instances of hacking — particularly of the emails of those associated with Hillary Clinton, with the intention of discrediting her and her campaign, the obvious result being a boost to Trump’s campaign. Even before Election Day, the U.S. government accused Russia of interference, specifically through calculated hacks. Though Russia officially denied these accusations, pro-Kremlin analyst and former United Duma member, Sergei Markov, celebrated Trump’s victory after Election Day and admitted, “maybe we helped a bit with WikiLeaks.” Russia intervening in our elections, especially in favor of Trump, sends a strong warning signal that should be heeded.
Speaking of free and fair elections, the effort initiated by Jill Stein and the Green Party that seeks recounts in the states of Wisconsin, Pennsylvania, and Michigan, is on many minds — not least, the mind of Donald Trump. In one of his usual Twitter rampages, Trump derided the “impossible recounts” as a “scam.” Later, he alleged, “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally”. Besides the fact that there is absolutely no evidence that millions voted illegally, Trump’s lack of respect for free and fair elections is disconcerting. If he truly believed millions had voted illegally, should he not accept a recount to verify whether this is the case? Seemingly, to him all that matters is that he won with no objections — not a hallmark of a leader of a democratic country. It is worth noting that recounts happen, and they are, obviously, legal. It can also be argued that recounts are beneficial to our democracy, should untoward patterns be spotted or confusing processes noted and hopefully later corrected (remember 2000 Florida?). Challenging legal recounts — with absurd lies at that — is a swipe at our democratic process.
It is clear that Trump poses a constitutional threat through his business holdings and his lack of respect for our democratic system. As President of the United States he could do singular damage. It is also clear that the U.S. Constitution granted Electors an important job. Please, do this job: do not vote for Donald Trump.
To the People Who Are Not Electors:
I admit that despite my argument outlined above, the chances of an Electoral College switch away from Trump is unlikely. And so I am addressing you here. While our democracy is not perfect, we, as a nation, have improved it, and have expanded rights to more of our population. This must continue. And to continue making progress, we need to exercise democracy as citizens. Speak to your representatives. Challenge discrimination and conflicts of interest. Democracy functions poorly without the wide range of voices that our nation contains being heard. Don’t be complacent, and use your voice. Onward and forward.