The Awesome Responsibility of the Electoral College

…was the original title of my article just published in The Federalist.  Check it out!  Here is an enticing excerpt:

If each of the 306 Republican electors truly believes, in his or her heart of hearts, that Trump is the best man for the job, that he is the American with the greatest “abilities and virtue, in whom the people perceive just grounds for confidence,” who has all “the qualities adapted to the station” of the presidency… in that case, by all means, they should cast their votes accordingly, and Trump will become, on December 19, president-elect of the United States.

But if there is doubt; if, after deliberation with fellow electors, it seems clear that there are Americans better suited to serve as commander-in-chief, then each elector who feels that way has both the right and the duty, as officers of the Constitution of the United States, to vote for somebody else.

That is the system our Constitution demands. It is not a theft. It is not an error. It is by design.

Those of you who have seen all the hard thinking I’ve done about electors in the past couple of weeks probably aren’t surprised it led to this, but I think I make a pretty good case.  Full article here.

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  • Adam Mala

    I enjoyed your article and want to interview you for my podcast. Please send me an email if interested at adammala@themalacast.com

  • gerv

    So if enough Republicans decide to vote for anyone other than Trump, and so Donald doesn’t get 270 but Clinton doesn’t either (seems likely!), then the House chooses among the top 3. So the key question is, who’s in position 3?

    But they don’t all meet in one room and argue it out, so there would need to be some kind of national popular movement urging the electors to choose a particular person instead of Trump or Clinton… Pence for President? :-)

    • BCSWowbagger

      I tend to think the electors should just (cue boos!) vote their consciences, and whoever finishes in third finishes in third. Whether that’s McMullin, or Sen. Ben Sasse, or Carly Fiorina… let the House sort it out.

      However, there’s a strong case for Pence: he was nobody’s first choice, but seems to be everybody’s second — all wings of the party respect him, and his net approval ratings are actually above zero, which used to be expected for any nationally-prominent politician, but has become incredibly rare in this polarized era. Plus, he’s been vetted, and has a certain degree of perceived legitimacy because he was formally nominated for national office by the GOP in Cleveland.

      So, if I were a betting man, I would first say that the electors are very unlikely to do anything like this, because our republic is broken and the electors don’t understand their constitutional role. But then I would say that, if something like this DID happen, you should put money on it being Pence who comes out on top of the race for third place.

  • TimHuegerich

    Do you have any recommendations of articles from whatever source that you think would be most likely to persuade a Republican Elector that Mr. Trump is dangerous enough to justify them seriously considering this?

    • BCSWowbagger

      First thing we need to know is our audience: who are these electors? What do they care about? What kind of conservatives are they? Unfortunately, I did not track electors during the primaries, believing at the time that Trump would be stopped at the convention, but I did track delegates very, very closely for a number of months, and the people who end up as electors are pretty similar to the people who end up as delegates (electors are generally nominated at the same conventions as delegates are elected), so we may be able to draw some inferences here.

      Many delegates, and many electors, are dedicated Trump supporters. While I think their judgment is mistaken, and could be corrected given a lot of time and work, they are not our most persuadable targets. We need to “flip” 37 of 306 Republican electors to other candidates, and any efforts we expend trying to flip committed Trump backers is effort we aren’t spending on lower-hanging fruit.

      Some electors, I think, are already anti-Trump, and just need to be told that they have the right — and the duty — to vote for the best candidate. The idea that the electors are beholden to the voters is as pervasive among electors as it is among voters; sharing pieces like mine in The Federalist might be enough to flip these. There are others:

      http://time.com/4575119/electoral-college-demagogues/

      http://www.factcheck.org/2008/02/the-reason-for-the-electoral-college/

      Quite a few electors are Kasich/Bush establishment types, often becoming electors for the same reason they become delegates: because they are longstanding party officials who are friends with other party officials. As party officials, they have strong incentives to toe the party line (voting their consciences would imperil their careers), but also have deep reservations about Trump’s long-term effects on the party, particularly his rudeness toward women and minorities, and his potential criminality. In general, I think they are best persuaded by hearing the concerns they already have restated boldly and loudly by people they already respect as peers. Things like this:

      http://www.cnn.com/2016/11/07/opinions/navarro-republican-voting-for-clinton/

      http://www.nytimes.com/2016/11/08/opinion/lets-not-do-this-again.html?rref=collection%2Fcolumn%2Fdavid-brooks

      http://www.politico.com/blogs/under-the-radar/2016/11/trump-university-trial-hearing-schedule-231426

      But I think that — as with the delegates — the bulk of the Trump dissidents are Cruz/Rubio grassroots conservatives. They may be easiest to flip, because they are quite used to taking and cheering on unpopular stands for the sake of conservatism and conscience, and not too many of them are party big-shots. What they need to hear is that Trump poses a threat to the Constitution, to originalism (and thus to the pro-life cause), and to America itself — and, again, they need to hear it from their peers. Grassroots conservatives are not nearly as fond of Ana Navarro and David Brooks as establishment conservatives, and are deeply hostile to the suggestion that Clinton would be better than Trump (I think rightly so), so let’s find some more conservative people who think Trump could destroy the country but don’t support Clinton:

      https://originalistsagainsttrump.wordpress.com/2016-statement/

      http://www.nytimes.com/2016/10/30/opinion/sunday/the-dangers-of-donald-trump.html

      http://www.nationalreview.com/article/432437/donald-trump-catholic-opposition-statement

      https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/06/02/why-constitutional/

      I hope that’s a good start. Whether it’s enough, I have no idea. Indeed, although I think I’ve made a good case that the electors have a duty to vote their conscience, not their party, I have to admit that it’s a long shot that enough electors can be persuaded of that in time.

      FlipThe37 (flipthe37.blogspot.com) is a new, ramshackle, non-partisan effort to convince the electors to vote for someone else. They seem to be mostly Clinton supporters who hope to flip Republican electors from Trump to Clinton, which is… let’s just say it’s so unlikely it makes my Hail Mary look like a 1st down from the 1-yard line. But they’re officially dedicated to blocking Trump, not electing Clinton, and they’ve built an impressive email list for the purpose:

      https://docs.google.com/spreadsheets/d/1_IApQY4QduYhi3xWEOxDuaBQ1eLVhh5KgHvVjKYnVQk/edit

      • TimHuegerich

        This is really helpful. Thank you.

        Do you really think direct email to electors can be helpful, though? I seriously doubt it, unless it’s someone you have an actual relationship with, at least on the level of a LinkedIn connection or Facebook friendship. I am fearful that any other attempts to persuade individual Electors are counterproductive to building support for exercising independent discretion. All organized efforts to directly contact electors will be conflated with the harassment and threats they are also receiving. The negative press in reaction seems to be gaining steam.

        I’m also not sure I understand what non-Trump scenario you find more likely than Clinton receiving a majority of electoral votes. Suppose 37 flip to Mike Pence. Is there really any chance the House would then use the opportunity to vote Pence in? I guess it depends on what happens between now and January 6 when they vote, but I’ve been thinking the only way Pence gets elected by the House is if a plurality of Republican Electors flip their votes to him. (Full disclosure: I voted for Clinton, though with my opposition to her extremist abortion position clearly posted. Solidarity Party all the way. However, I certainly regard Pence as immensely preferable to Trump (and possibly preferable to Clinton–which I gather you regard as obvious). I also recognize that a President Pence would be less likely to provoke a violent reaction and/or worsen divisions than a President Clinton.)

        • BCSWowbagger

          “Do you really think direct email to electors can be helpful, though?”

          As I said, I really don’t know. What I do know is:

          [1] electors are public officials, and, whether or not they like it, the People have the right to petition them for the redress of grievances, because the First Amendment says so. That’s not harassment; it’s the American Way.

          (On the flip side, the electors have absolutely no obligation to *listen* to our petitions, because that would defeat the whole independent republican institution thing, but we do have the right to make them.)

          (And, lastly, because it needs to be said: nobody should threaten or be anything but completely courteous to *any* public servant, *including* the electors.)

          [2] I don’t know how else to contact them. You are almost certainly right that personal connections, if you have them, are far more likely to be effective than anonymous emails or phone calls. If that’s an option, you should take it.

          You may be right that anonymous emails could even be counter-productive; I truly don’t know. I am a constitution-and-process nerd, and questions of how best to persuade public officials exceed my expertise. It may be that those of us without direct connections to electors are better off writing articles for The Federalist instead of directly contacting electors… in which case I’m in great shape! :)

          “I’m also not sure I understand what non-Trump scenario you find more likely than Clinton receiving a majority of electoral votes.”

          I was talking to a British friend of mine yesterday about my article, and this came up. I think what I said to him is about right: “The least realistic option of all is asking the Republican electors to switch their votes to Clinton. I am not certain I can express the level of antipathy felt by Republicans for the Clintons, particularly among longtime activists who are veterans of the 1990s battles with President Bill. And most GOP electors are longtime political activists. I am confident that at least 270 GOP electors would sooner vote for Satan, Prince of Darkness, than vote for Hillary Clinton. 270 GOP electors would sooner vote to cut their own legs off with a rusty spoon than vote for Clinton. Voting for Trump will be comparatively easy for even the most conflicted of them.”

          I saw this a lot back when I was tracking delegates: delegates in all of the most anti-Trump states (I think especially of South Dakota) could be found saying, “Well, Trump is a catastrophe, but we have to stop Clinton.” Politico did some reporting a few months ago that suggested this attitude is basically shared by anti-Trump electors: http://www.politico.com/story/2016/08/voting-for-trump-through-gritted-teeth-227031

          So, although all non-Trump scenarios are very unlikely, I think the one where Clinton becomes president instead is the least likely of all.

          “Suppose 37 flip to Mike Pence. Is there really any chance the House would then use the opportunity to vote Pence in?”

          There is a chance. I feel like the guy in Dumb & Dumber saying that, because the chance is very remote. But the FiveThirtyEight crew sketched it out a few months ago (when it looked like Evan McMullin’s electors might win Utah): http://fivethirtyeight.com/features/how-evan-mcmullin-could-win-utah-and-the-presidency/

          Basically, it comes down the the House’s arcane 12th Amendment procedures: rather than voting as individuals, the House splits into state delegations and each delegation votes as a bloc, with each bloc having one vote and a majority (26 states) required to win. We know that there is a sizable number of anti-Trump Republicans in the House of Representatives (http://www.theatlantic.com/politics/archive/2016/11/where-republicans-stand-on-donald-trump-a-cheat-sheet/481449/ ). So the question would hinge on: how many state delegations can they control? and how dedicated would they be to resisting Trump? If they stubbornly hold out for long enough, they may be able to draw support for (say) Mike Pence from Democratic delegations who hate Pence but fear Trump more, putting Pence over the top.

          I haven’t done the whip count, so I’ve no idea how tough a push this would be, but I’m certain it would be an easier push than flipping the college to Clinton.

          My goal with my article was get the electors to think deeply about their choice, and remind them of their duty to choose well; I didn’t give much thought to the chances of actually blocking Trump, so I’m ad libbing pretty hard in these comments.

          Glad to meet another Solidarist, in any event!

          • TimHuegerich

            Ah, right, I forgot about that 538 article and the potential kingmaker role of the Democratic delegations.

            I think I can’t help but underestimate the aversion to Clinton, since I’ve already come to terms with crossing that line myself. But you really think even the “Kasich/Bush establishment type” electors all prefer Trump to Clinton? I guess I thought the Clinton endorsements by newspapers that have never endorsed a Democrat before would either be persuasive to some of them or representative of their thinking. http://fivethirtyeight.com/features/clinton-leads-trump-and-obama-and-reagan-in-the-newspaper-endorsement-race/

            In any case, thank you so much for writing the article. It made me feel a little more sane after a week where it seemed like every commentator who even mentioned this insisted that the only reasonable position is, “We have to do everything possible to resist Trump…except allow Electors to function as the Framers intended.”

  • Greg Shinaberry

    I just started reading this blog and I really have enjoyed it thus far. I especially enjoyed the piece on Bill Nye which brought me here in the first place.

    So after a bit of skimming, I was wondering, why do you dislike Trump? I support him, and have gone from hating him to a legitimate supporter throughout the primaries and general election. By the quality of the writing it seems you really know your stuff and would be awesome to get your (or any other commentator’s) opinion on the subject.

    • BCSWowbagger

      Hi, Greg! Glad you’re enjoying the blog!

      You ask a fair question, and, looking back, I realize that I’ve never actually put together a blog post explaining, in detail, my deep-seated opposition to Mr. Trump.

      I think you can boil it down to three things:

      (1) He supports things that I consider intrinsically evil. Killing innocent kids — even the kids of terrorists — is a war crime. We literally executed Nazis at Nuremberg for less. And Trump has proposed this as the policy of the United States. This is one example, of several. (I’ve written about several others here: http://www.jamesjheaney.com/2016/11/07/for-the-record-trump-is-evil/ )

      (2) I have always believed that a good president must be a man of sound moral character. Nobody’s perfect, including the president, but I strongly prefer to vote for a president who is more virtuous — or at least as virtuous — as I am. I don’t think of that as Christian moralizing, either; I believe that Aristotle’s basic theory of virtue ethics is correct, and that a person without strong virtue is literally *incapable* of making good decisions. This used to be the position of the entire Republican Party, during the Bill Clinton presidency of my youth. I was scandalized when Clinton got away with what he did in the Oval Office with poor Ms. Lewinsky, and I thought we all were.

      But Mr. Trump is a man whose lack of prudence, justice, and chastity is on plain display for all to see. He claims he has never sought forgiveness. He is proud, covetous, lusty, wrathful, greedy, and vainglorious — perhaps the greatest example of those seven deadly sins I have ever come across, wrapped up in one neat package. I’m not going to stand here and tell you that Ted Cruz is a paragon of virtue (Cruz is also dishonest and ambitious in the worst way), but compared to Mr. Trump? Literally every Republican candidate was superior to Trump by every measure of virtue I can think of. He’s lucky the Democrats nominated Mrs. Clinton.

      (3) Mr. Trump’s policy proposals are uniformly vague, often self-contradicting, and brazenly dishonest. Throughout the campaign, he flip-flopped this way and that based on whatever he was hearing. During one memorable weekend, he took the issue that matters most to me — abortion — and took *five* different positions on it. (None of which were great.) His fantastical tax plan would blow the deficit to kingdom come even compared to the other candidates — which is saying something, because the only Republican candidates who have put out a budget-responsible tax plan in the past eight years both had the last name “Paul.” Now I hear Mr. Trump’s Obamacare replacement is going to keep the fix for pre-existing conditions but get rid of the individual mandate — which will cause a death spiral — and I hear he’s decided *not* to prosecute Mrs. Clinton despite promising very clearly to do just that. And he just settled a lawsuit he swore he’d never settle (a lawsuit which, I think, demonstrated fraud on his part… which only furthers my case that he can’t be trusted).

      This gets beyond mere failures of virtue and cuts to the heart of the decision we face when we elect a president: what is he actually going to *do* as president? Which set of contradictory promises is he going to fulfill? What plans will he implement? What will his priorities be? I have no idea — and, what’s more, I think anyone who says they *do* have a clear idea what kind of president Mr. Trump will be are deceiving themselves. Will he appoint a Supreme Court justice from his list, as he promised (then un-promised, then later re-promised?), or is he just going to screw us all over and nominate Peter Thiel instead (as was credibly reported in July)? I don’t know. The arguments that Trump will govern as a conservative (we just need to trust him!) remind me of nothing so much as the arguments that David Souter would be a conservative justice (we just need to trust him!) during the GOP’s attempt to get him approved by the Senate through “stealth bomber” proceedings where didn’t reveal his positions on any important constitutional questions. Sure enough, he turned out to be a giant flaming liberal once on the Court.

      Because of this, the only pro-Trump arguments I found credible were the ones that contrasted him with Clinton: “We KNOW Clinton will be really bad for us, and there’s a CHANCE Trump will follow the promises we want him to follow and be good for us.” Okay, fair enough. But this is an incredibly underwhelming way to endorse a president, unprecedented in my lifetime, and it makes it very hard to sustain support when alternatives besides Clinton arise — as they did the instant the election moved from the voting booth to the electoral college.

      So that, in a nutshell, is why I oppose Trump: he supports really evil stuff, he has no moral character I can discern, and I have no idea whether he’ll govern the way I (as a conservative) want him to govern. Once he’s the president, of course, I’ll hope for the best, and I celebrate certain positive aspects of his campaign (shattering political correctness, for one), but every time I think we could have had, say, President Carly Fiorina instead, I go and hit my head against a wall.

      If Trump defeats my expectations, of course, and governs as a conservative (at least on the issues that matter most to me), then I’ll admit I was wrong and re-evaluate. I’ve already been wrong once, because I didn’t think a man with his unfavorability rating could win the election, but he did. For now, though, I’m hoping to see him primaried in 2020. Maybe at some point I can turn that into a real blog post.

      Now that you’ve heard my whole long rant, I’m very curious: you say you moved from hating him to supporting him. How did that happen? I’ve known people who supported him from the start, and I’ve known people who hated him from the start (some of whom held their nose and voted for him anyway), but I’ve known very few who went from hating him to legitimately supporting him. It sounds like an interesting story you have!

      • Greg Shinaberry

        Sorry I’ve been busy and haven’t had the time to respond, very thorough!

        At first I hated him for practically the same reasons you state, not as well thought out but generally that was the gist of my arguments against trump. However a number of things began to convert me.

        To understand why the following is so important to me you first have to understand I want to “Make America Moral Again!” (I couldn’t resist). To that end I believe that there are several underlying factors that have led to the state of moral decay in America today which absolutely must be rectified in order to bring about a moral change. Those that are pertinent to my trump conversion I’ll describe below but I’ll skip on explaining why I believe them true for time/writing space sake, but I’ll be happy to discuss any of it later if you have any particular questions.

        Now Trump himself may not be an exemplar of virtue in some areas, but he doesn’t have to in order to enact positive change. He has consistently said he will appoint pro-life supreme court judges for example. If he turns out to do that out of altruism or political expedience is irrelevant to the repeal of Roe v. Wade and (hopefully) the declaration of Abortion as an unconstitutional infringement on the unalienable right to life.

        1) Trade: This is the first time I began to like trump. I had never before considered trade as an issue believing free trade was in our best interest in blind faith. Trump however, made some very good points for the case against free trade which enlightened me to the long term costs associated with trade and developing nations. Put simply, we have workers rights and they do not (comparatively) and our workers can’t compete with workers from Mexico, China, ect. Goods may be cheaper in the short run, but all of our middle class producing jobs were lost and I also maintain that it is self-evident that a nation which produces nothing (i.e. service driven economy) will never have a stable economy.

        This really connected with me because I believe in order for any successful democracy to work you absolutely need a middle class. I believe only the middle class can realistically be open minded, educated in the diverse issues required for the power of government to be held in their hands, and do so stably (ie high percentage of the demographic). After contemplating the long term effects free trade with developing nations had on America I came to blame this (not solely, but to a significant degree) for the dissolution of the middle class. I could go on for days at length for why the middle class is so critical.

        Now, what really caused me to question my distaste for trump was he was the ONLY candidate I know of to ever campaign on that topic. It was a legitimate reason to support him besides the “he’s our candidate, down with Hillary” argument.

        2) The culture war: I only became politically active around 2 years ago and soon realized something I actively promote that my friend laugh at me for: we are in a civil war. I remember the moment I switched from debating my progressive friends to seeking their rhetorical destruction. It was the moment I realized progressives have been executing the culture wars like total war in the sense they have no scruples about conducting personal attacks, dehumanizing conservatives, and any number of other hostile rhetorical and political motions to get what they want. The worst part is conservatives were losing on all fronts and we weren’t even fighting back.

        Now calling it a war may be a bit of showmanship, but it gets across the state of affairs in America. First, there are two distinct cultures in America today; conservatives and progressives. In all the history I’ve ever studied multiculturalism has never worked and worse still these two cultures are anathema to each other. Through the Obama administration the progressives have made it clear: Conservatives have no place in their America and they will not compromise. Progressives are the fulfillment of the counter culture and they started this war against conservatives long ago and time and time again we have been caught with our pants down and paid dearly for it culturally.

        So what does this has to do with Trump? Out of any candidate I believe he understands this or at the very least serves as an actual warrior instead of a politician. In war you kill your enemies and what trump did during his campaign was the equivalent of nuking Hiroshima or firebombing Tokyo. (I’m not actually suggesting we kill progressives, this is all figuratively)

        If we did not have the will during WW2 to pursue such a brutal campaign we would have lost to an opponent who displayed that they definitely did. Similarly if conservatives are afraid to sully their hands then we will continue to lose to an enemy who has no scrupples about dehumanizing republicans baselessly as racists, misogynists, and plain evil. Our weakness translates into emboldened progressives pushing more rediculous issues and, more frighteningly, more and more autocratic-ish policies. You may disagree but again that’s a whole other discussion.

        So after seeing him fight in the general election against literally almost everyone I came to see what most people see as his evil in a positive light.

        3) His Mentality: One of my original issues with him was similar to yours: he has 8 different policy positions and switches constantly. But as I followed him closer I realized he does this with everything and it is just his throwing unpolished ideas out into the public discussion space. It became a lot less scary one I took the advice my father gave me when I was a kid: Only actions matter, words mean nothing. Words change with the wind and come easy as sleep to a weary traveler but what a person does betrays their heart. In this case his individual speeches and remarks and day to day “policy” may be erratic on issues but the average of his speech betrays a broad agenda that he has never faultered on. This being protectionism against developing nations, pro-life agenda, revitalizing the cities and returning manufacturing, defeating ISIS, positive relations with Russia, Israeli focused middle east policy, and most famously building a wall and controlling immigration.

        I work with statistics all day in my research and the parallels are easy to see. So I am not worried about him betraying those things. He could surprise me but I’m convinced that he won’t veer from those general themes. I disagree with him on Russia, but everything else I agree with.

        He also has some strange obsession with deals, the art of the deal, and leverage. If you frame, for example, his NATO comments in the lens of “leverage” you see it as most likely a bargaining chip and not that he actually intends to leave NATO or not defend a member state. But the fact that you and most critics think he’s serious is exactly why he says those things…hopefully :)

        4) Advisers: One thing Trump has stated and he has proven good about is hiring and surrounding himself with competent people. It is one of the few skills I believe he has an advantage on from running his business over career politicians. He has proven this with his cabinet picks and his list of potential supreme court appointments. I was very impressed by his Mattis pick because his qualifications and he publicly disagrees with Trump on the positions I really disliked namely Russia and foreign policy. I highlight the Mattis pick because Trump recently has shown that he differed to him on waterboarding and decided against pursuing torture as a tactic. From my observations Trump has made a big deal about trusting qualified and competent advisers and from what I have seen he legitimately listens and values their input on his decision making process. He may come across like a bumbling idiot when he announced he would defer to Mattis by his trademark “He’s great, hes phenomenal!” explanation, but like I said words don’t matter, actions do.

        5) Hope: Whether or not trump does anything good is still a mystery, but one thing will remain true, for the first time in a long time I felt an ever present sense of losing lift and a reinvigorated feeling of pride in my beliefs. Before I had felt that America was doomed to become a progressive wasteland where I would be publicly shamed, forced to pay a “privilege” tax and be thrown in jail unless I publicly swore to support liberation theology and attend mass by a state run “catholic” church with a transsexual lesbian priest. Alright, probably not that bad but it looked grim.

        This point in particular may not be a logical point to support trump, but the man stood up against the people set to destroy my way of life. He could be literally Hillary as president but it will never change the fact that for a 3 month period he spit in the face of the people who have been spitting in mine for the past decade. He has my respect for that at least.

        And when I watched the vote come in and it became clear Trump would win I couldn’t stop watching as he won more and more of the “blue wall”. I ended up staying up all night in anticipation Pennsylvania and Michigan. That’s the night I completed my transformation into a Trump supporter. I had a logical base to support his platforms (to a degree), I grew in admiration for him while he fought for me against my enemies apologetically, and then when he won he gave me hope; something I haven’t felt in a very long time.

        6) Closing: I am a Trump supporter and that was the journey. I remain cautiously optimistic I’ll call it. He was incredible general with his campaign promises and he is a lying scumbag when it suits him so he could be terrible. I don’t think he will be but I’m ready to jump ship if his actions as president don’t meet my goals of a more moral america.