“There is a cult of ignorance in the United States, and there always has been. The strain of anti-intellectualism has been winding its way through our political and cultural life, nurtured by the false notion tha deocracy means ‘my ignorance is just as good as your knowledge.'”–Isaac Asimov on the rise of DonaldTrump
For the fifth time in U.S. history, and the second time in sixteen years, a presidential candidate has won the White House while losing the popular vote. And the situation has been quietly getting more attention. The last time I checked, 3.6+ million citizens have signed a petition to the Electoral College making a case for them to, in effect, overturn the November 8th Electoral College result,that shows Clinton won the popular vote by a number approaching ½ a million.
For all of the GOP’s claim to be Constitutionalists, I guarantee you they would scream bloody murder if the Constitution is legally followed by the Electoral College regarding this issue. But they would be dead wrong.
The Framers created the Electoral College as a safety valve analagous to the way a judge can overturn a jury verdict. They were clearly had a predicament in deciding exactly how the states would institute the process for selecting a president. Most Framers assumed they’d have popular elections. But to avoid the chance that some detrimental or questionable activity by a faction within the nation, or a demagogue, or if improprieties were coerced, etc., that the EC members deemed untenable, they embedded the electoral college as the de facto judge.
As Hamilton wrote in Federalist 68, “the sense of the people should operate in the choice of the [president]” — but that sense would operate through several intermediate bodies that would meet separately in the states, cast their ballots, and then transmit the results to Congress. That process is what we know as the Electoral University, or Electoral College as it’s come to be called.
By requiring they all meet on the same day but in many different places, the Framers thought they could avoid coordination and “corruption.” Naturally, they had no more way of knowing that we would have Russians hacking into our election system, but by vesting the ultimate decision in these electors, they intended, Hamilton tells us, that:
…the immediate election should be made by men [and now women] most capable of analyzing the qualities adapted to the station[office], 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. (Federalist 68)
Many have rightly or wrongly criticized the college as anti-democratic. It’s been assumed in many critical interpretations that they did this so extremely populated areas would not always determine the eventual winner. I happen to be one of those critics because regardless of location, to me one-person, one vote seems like the only equitable way to go.
But, so long as it is part of our Constitution, should we not take it seriously? And it was explicitly intended to give a set of elected representatives (the “electors”) a chance to independently decide the viability of a popular election. If the people went nuts, the electors, the ultimate judges, could veto it.
But suppose people don’t go nuts, is there still good reason — or justification — for the electors to adjudicate the result? The Framers did not limit the reasons the electors might invoke for voting however they vote. They are free to vote however they want, for whatever reason they want. As with many other Constitutional issues, they would presumably need to justify what they decide to a public that would ask why. But the fact remains, they are authorized to veto the electoral will in favor of the popular vote.
In this election, I don’t think people have gone crazy. The majority, by an increasing spread, cast their vote for Hillary Clinton. Like her or not, she is not a demagogue. She is not a tyrant. She’s not even a bigger liar than the winner.
But because of the screwy way that electors are allocated, despite her winning the popular vote, she will lose the vote in the Electoral College if the electors simply follow the modern winner-take-all tradition for casting their votes (also not called for in the Constitution).
There is no reason — either morally, politically, or constitutionally — that the electors need to justify if they chose to on December 19th. Each elector is free to vote his or her own conscience. In a republic — otherwise known as, a “representative democracy” — it would be totally legal and justified, for an elector(s) to vote to assure that the will of the majority prevails in a presidential election.
I understand that many will respond — “hey, but that’s not our system.” But by the letter of Constitutional law, which so many claim to be sacrosanct, those “many” are just wrong. That is our system. Like it or hate it, electors can legally vote however they wish; exercising their power consistent with Constitutional ideals.
And this is the point that too many are just missing. Electors in the College can interpret their duty to be consistent with the Constitutional as it is written…literally.
In theory, we could amend the Constitution to eliminate this Electoral College law. But in theory, only. The practical reality is that such an amendment is almost impossible. As Michael Klarman writes in his most recent book, The Framers’ Coup(2016):
[A]n amendment to alter [the Electoral College] would be virtually impossible to enact — both because the even more drastically malapportioned US Senate would very likely never pass it but because the smaller states, which benefit from the malapportionment, would never ratify it.
Yes, our Constitution is great. Ask anybody who thinks “a well-regulated militia” means any person can own any kind of weapon they want. But if the America’s Constitution specifically states that there is a legal, acceptable method to enforce the will of the majority of ALL Americans and that the Electoral College is a feature of our Constitution that is effectively unamendable , then it’s time we remember what our Framers did, the last time America was confronted with an effectively unamendable constitution that defeated the democratic will: They trashed it and started over.
In 1786, when it was clear that the flawed and anti-democratic Articles of Confederation could not be amended sufficiently to address all of its inherent flaws as drafted by the FIRST CONTINENTAL CONGRESS. The Framers recognized their errors, trashed the Articles, and started a process to draft a new Constitution with the SECOND CONTINENTAL CONGRESS.
But this time, when they completed that draft, they told Congress to send it to all of the state conventions to be ratified. That draft stated that it would come into force only if if nine of thirteen state conventions so ratified. Nine months later, New Hampshire was the ninth state to ratify it, and the Constitution became the foundational law of the United States of America.
Every step of that process was, under the original, Articles of Confederation, illegal!! But since its ratification in 1786, it’s precisely what it means to live in a republic, where “the people are sovereign”, not the states. We had declared our independence from Britain on the Jeffersonian theory that the people had an “unalienable right to alter or abolish” Britain’s constitution. In adopting our Constitution, the Framers exercised that “unalienable right.”
If we are yet again governed by an effectively unamendable Constitution that specifically states that the Electoral College is within its legal duty to decide that the 500,000 majority vote on Nov. 8th should be recognized, it is time to recognize it or move to remove the unremovable.
In 2016, despite the way the Electoral College is written into the Constitution, the person with the most votes will likely not be president. Because of the way Congress permits the states to gerrymander congressional districts, the party with the most votes will not be the majority in the House. And because of the way the Framers crafted the Senate, the party with the most votes will not be the majority in that body either.
Only one of these three anti-democratic outcomes is actually compelled by our Constitution: the Senate. I, for one, would be happy to accept that one compromise.
But the same Constitution that denies the majority its will automatically in every branch of government has explicitly given a representative body the right to speak for the will of the majority.
We can, idiotically, just continue to accept tradition, but it’s not the law. I understand it, but it IS changeable under the same Constitution that we use to justify the 2nd Amendment and every other amendment.
Or, like citizens in a republic, we can stand up and fight. We can demand our current representative Congressmen and Congresswomen fight with us. Will we do that? I have extreme doubts. I don’t think the Democrats have it in them, much less lazy Americans. After all, in what is considered a “monster” voter turnout, only half of our entire population bothered to even vote.
I have no idea how the above would even gain traction. But our esteemed members of Congress damn sure could for once do their jobs. And I’ve long been a fan of the one clear path to amendment that the Framers seemed to leave us — an Article V convention..
But I know this. I’d prefer to have electors behave in a way that’s consistent with a representative democracy and the way the Constitution clearly states they can, than to simply follow a lazy tradition. And then after that, get our damn Congress to reform the insane system of gerrymandering, not to mention Citizens United which corrupts campaign finance, and insanely tries to convince that money is the same as speech…any high school drop-out knows money is property, not a right, and proves the U.S. is not a representative, democracy-based, elected government.
The populace understandably feels like they no longer have a representative government when their votes essentially mean nothing if a candidate who receives fewer votes is allowed to win federal election, even in the so-called “Peoples House” of Representatives. In 2012 Democrats House GOPs Won 49 Percent of Votes, but got 54 Percent of Seats!!
Meanwhile, we should all encourage those intelligent enough to fight for democratic principles to do so…vehemently. And if you are reading this, you should sign the petition by clicking here : (https://www.change.org/p/electoral-college-electors-electoral-college-make-hillary-clinton-president-on-december-19) along with the 3.5 million+ people who have already signed demanding that the Electoral College do their duty and make their votes–that the Constitution specifically allows them to do when a demagogue has won an election with interference from a foreign, hostile government as was Nov. 8th.
Do I think there is a chance that any of the above will cange the outcome of the election? Not a chance in hell. It would take personal courage, personal integrity, and placing the welfare of all Americans over the 49% foolish enough to believe anything Trump said. Our Framers had it. Today’s politicians do not.
Such action used to be considered a Patriotic principle. Now, only if it favors Republicans.