Founding Fathers and 18 US Elections Tell Electoral College: Do the Right Thing
Ready for a surprise? The US presidential election didn’t take place on November 8. That election won’t happen until December 19, when the Electoral College will convene to settle the matter of which candidate receives the 270 or more electoral votes that determine who gets to take the oath of office as President of the United States. But of course, if you’re a member of the Electoral College, you already knew that part of the story.
Ready for another surprise? Alexander Hamilton, in the sixty-eighth of the Federalist Papers, which is all about the Electoral College, insisted that while it is “desirable” that the “sense of the people should operate in” the selection of America’s commander-in-chief, it is “equally desirable that the immediate election be made by men most capable of analyzing the qualities adapted to the station.” (Emphasis added. Of course, in 2016, the Electoral College consists of both men and women.)
In other words, according to the instruction book for the US Constitution, which is what the Federalist Papers amount to, the members of the Electoral College must each make their own personal best call when it comes to the deadly serious business of selecting a president.
Hamilton and the other Founding Fathers envisioned an Electoral College that was wiser and more temperate than the people back home whom they represented. They designed the Electoral College as a kind of Constitutional safety mechanism. And if you’re a member of the Electoral College, you should know that you are that safety mechanism.
Hamilton’s vision — the vision of the Founding Fathers who designed our Constitution — implies a far more activist Electoral College than most of us have been trained to accept. This may not be how we are used to thinking of presidential elections. But it is nevertheless how our system was meant to work. The instruction book proves it. In an emergency, the Constitution counts on the individual members of the College not to vote in mindless, unanimous blocs, state by state, but to use their minds and their personal experience to analyze the situation independently — before voting in the best interests of the Republic.
The Electoral College Thinks for Itself More Often Than You Might Imagine
Many of us have been led to believe that instances of independent voting in the US Electoral College are quite rare. It turns out, though, there have been many more shifts and challenges and second thoughts in the Electoral College after the popular vote and before an election than is commonly known.
Consider the following list of Electoral College voters who thought for themselves, compiled via FairVote.Org. All in all, eighteen of the fifty-seven American presidential elections held before 2016 have featured independent thinking and voting from electors.
1796 — Elector Samuel Miles of Pennsylvania votes for Thomas Jefferson rather than John Adams, for whom he was pledged to vote. Miles is the first elector in American history to break ranks with his state’s party leaders. He’s not the last.
1808 — Six electors refuse to support James Madison, as their party instructs, choosing instead to vote for his opponent, George Clinton.
1812 — Three Federalist electors refuse to vote for their party’s vice presidential candidate.
1820 — Elector William Plummer of New Hampshire refuses to vote for James Monroe, apparently because he felt George Washington should remain the only president elected unanimously by the Electoral College. Plummer votes for John Quincy Adams, who was not an active candidate.
1828 — Seven electors from Georgia refuse to vote for Andrew Jackson’s vice-presidential candidate John Calhoun.
1832 — Two Maryland electors pledged to presidential candidate Henry Clay choose to abstain. In addition, thirty Pennsylvania electors pledged to vice-presidential candidate Martin Van Buren (Andrew Jackson’s running mate) vote for someone else.
1836 — Martin Van Buren’s vice-presidential candidate Richard M. Johnson loses twenty-three electoral votes from Virginia in response to a sex scandal.
1872 — Democratic candidate Horace Greeley (who had lost to Ulysses S. Grant) dies before the Electoral College convenes. Sixty-three democratic electors choose to vote for other Democratic candidates, but Grant is elected. This one is particularly important, I think, because it proves that electors not only can vote, but have voted, for whomever they wish in extraordinary circumstances.
1896 — Four electors switch parties. Both parties supported the same presidential candidate, William Jennings Bryan. This switch was significant, though, in that a) each of the electors chose to abandon their existing party allegiances and b) each elector’s vote for Vice President changed.
1912 — Eight electors change their votes after the vice-presidential candidate on the losing Republican ticket, James S. Sherman, dies. Notice once again that the electors opted to vote for candidates of their own choice in response to extraordinary circumstances, as opposed to simply reciting the names they were “supposed to” recite. They used their minds. They analyzed the situation.
1948, 1956, 1960, 1968, 1976, 1988, 2000, 2004 — Each of these gatherings of the Electoral College featured a single elector casting a protest vote of some kind.
The Problem of the Emoluments Clause
At this point, a question arises. If there were extraordinary circumstances following THIS election — one candidate being in manifest violation of the Emoluments Clause of the US Constitution, say — what would Mr. Hamilton and the rest of the Founding Fathers tell us the right response should be?
Mr. Trump, as we know, refuses to divest himself of his business interests or place his assets in a blind trust. He proposes that his family members should manage his affairs, a measure that would fail spectacularly to protect the Presidency, and the Republic, from conflicts of interest. He thus stands in willful, open violation of the Constitution he is about to swear to uphold. By the way: This is a matter on which ethics attorneys for both George W. Bush and Barack Obama are in complete agreement. There is no wiggle room. Mr. Trump must comply with the Emoluments Clause. And he refuses to do so.
The question before us is so important that it demands repetition: How would the Founding Fathers want the Electoral College to respond to a candidate who proposes to violate the Constitution from the moment of his swearing-in?
Personally, I believe Mr. Hamilton would argue forcefully that the electors should follow the declared example of Christopher Suprun, a 2016 elector from Texas, and pledge to vote their conscience … and vote against Mr. Trump.
Let me be clear. We are not asking the Electoral College to vote for Hillary Clinton.
We are not asking the Electoral College to vote for Hillary Clinton.
We are asking them to do their job, analyze the situation, and vote for a candidate who will not endanger the Republic. If 37 patriotic Republican Electors do that, the matter will go to the House of Representatives, as it did in 1800 and 1824.
In the hit musical Hamilton, George Washington warns Alexander Hamilton: “History has its eyes on you.” The same warning might be offered, with deep respect, but also with a principled insistence on honoring the intentions of the Founders, to the electors who will gather to elect our president on December 19.
Our Constitution, and our Republic, face an emergency. History will judge you by your response to it.
This law firm is offering free legal advice and representation to electors who opt not to vote for Mr. Trump.
See also my articles on the many disturbing irregularities in the 2016 presidential vote.
