For many of us, the most important issue at stake in last month’s election was the Supreme Court, where judges who primarily attempt to follow the Constitution’s text are currently outnumbered, 5-3, by judges who make other concerns the primary basis of their decisionmaking. This question has major policy implications, since textualism is totally incompatible with several key Supreme Court precedents made during the recent decades of anti-textualist supremacy — most notably the abortion rights guaranteed by Planned Parenthood v. Casey.
Once Trump enters office, he has promised to fill the late Justice Antonin Scalia’s chair with a fourth textualist, making the balance 5-4. Trump has also promised to ensure that any other vacancies are filled by constitutional textualists. (His opponent, Mrs. Clinton, promised litmus tests to ensure the exact opposite.) Whether Trump will keep that promise is a matter of some debate, which this post will not attempt to settle.
This whole electoral college thing is getting weird.
A little while ago, I called on the electors to do their duty: when they vote for President on December 19th, they must vote for a person they consider qualified and fitting for the office — even if that means voting for someone other than the two major-party candidates. (I floated the name of Mike Pence. Though hardly my first choice, Pence is nearly unique among nationally-prominent American politicians today in having a positive net approval rating, but any well-qualified candidate who appeals to Republican electors would do.) I said that the right of electors to vote against their pledges to block demagogues from the Oval Office was truly “more than a right: it is a grave and difficult duty.”
At about the same time as I made my case, a bunch of people on the Left had the superficially similar but actually quite crazy idea of demanding that the electors vote for the winner of the national popular vote (that is, Hillary Clinton) instead of the popular vote in their respective states (where Donald Trump leads). This is a bad strategy for three reasons:
We had a good conversation, which ran about a half-hour. I haven’t had a chance to listen to the final cut yet, but I enjoyed myself thoroughly.
I’ll give a little warning that, in live interviews, I am less circumspect than I am on the blog. You can’t check your facts, you can’t wait to decide the best way of saying something, so you just talk. The net result is that I let my right-winger flag fly a little more than I do here on the blog. Which was… kinda fun, actually!
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.
The day of the Brexit vote, the very first constituency to report results, Newcastle-upon-Tyne, reported a defeat for Brexit, 51%-49%. The defeat for Brexit there was expected. However, the margin was wrong: experts had expected Brexit to fail in Newcastle by 12 points, not 2 points. Newcastle had been a “safe state” for Brexit that turned into a narrow win.
This, in the end, was the story of the entire Brexit results night. Areas that were expected to vote for Brexit by a narrow margin voted for it by a large margin; areas that were expected to oppose it by narrow margins ended up supporting it by narrow margins. There were a few places where the anti-Brexit “Bremain” vote did better than expected, as there always are… but not many. By the time the results were tabulated in England’s version of “battleground states,” the result was fairly clear on the strength of the vote totals in the “safe” constituencies alone.
Lesson for Americans: you can infer a great deal about the state of the presidential race from even early results in small geographic areas.
A few weeks ago, Trump supporters were talking about how their man was going to win even though all the polls showed him losing, “just like Brexit!”
Those of us who knew something about Brexit said this was stupid, and rightly so: the final Brexit polls showed Brexit losing by about 0.5%, and Brexit went on to win by 3.8% — a polling error of 4.3%. The global elites who had been handicapping the race had been predicting a loss for Brexit, but they had ignored the polls (which showed a close race). The elites looked like idiots after Brexit won, and rightly so, because the lesson of Brexit is you should always pay attention to the polls.
So when Trump supporters started saying they were going to win by beating their polls, “just like Brexit,” those of us with sense went and checked the polls. At the time (right after the third debate), Trump was losing by an average of 7 points. In other words, even if Trump beat his polls by 4%, “just like Brexit,” he’d still lose the election by 3%!
I was asked this morning whether my deep, profound objections to casting a direct vote for Donald Trump are based solely on his (total lack of) character, or whether Trump has actually campaigned on promises to enact intrinsic evils. While this was the first time the question has been put to me directly, it wasn’t the first time I’ve seen similar. There seems to be an idea going around that, while Trump has done bad, gross, perhaps illegal things in his private life, his public political platform is free of any intrinsic evils, and thus conscientious voters can feel free to support him.
“Intrinsic evil,” for those who haven’t seen the phrase before, is a bit of a magic wand in voting ethics debates, especially Catholic voting ethics debates. To briefly explain:
A candidate who supports something that might cause evil (but might not) is a candidate who might, debatably, be worthy of your support. Tax plans are often used as an example of this kind of thing: people of good conscience can disagree about whether it would be best for our society if we raised taxes on the rich or cut them. People of good conscience can even disagree about really important, life-and-death matters, like whether or not a certain war is a just war.
But there are some questions which are absolutely beyond debate. If a candidate supports rounding up the Jews, putting them in slavery camps, and then gassing them, that is an intrinsic evil. It is evil not because of its causes or consequences, but in and of itself, with absolutely no room for debate. A candidate who supports this is unacceptable, and must be opposed. The only case in which a voter can ethically support a candidate who supports intrinsic evil is when all viable candidates support intrinsic evils, and the voter is thus forced to either choose the lesser of two evils or not vote at all. In that case, the voter may, in conscience, cast a vote for the candidate who seems “less likely to advance such a morally flawed position and more likely to pursue other authentic human goods”
For swing state voters, there are no good choices on Election Day. As Ross Douthat argues, it is too dangerous to vote for Trump. As Janet Smith argues, it is too dangerous not to. As Rachel Lu argues, for me to signify support for Trump by voting for him risks injury to my soul (for that matter, the same case applies to Clinton). Yet it seems to me that, under our fundamentally flawed first-past-the-post voting system, failing to use my vote to advance the best available version of the common good risks the same injury. As far as I can tell, they’re all right.
We talked about the awfulness of all our choices back in May, so I won’t belabor this point except to say that, in the six months since I wrote that post, things have somehow gotten worse. Those of you who don’t live in swing states are very, very lucky. (I posted a full list of “safe” and “swing” states on Saturday morning.) Those of us who do live in swing states have been trying to figure out how we are going to vote.
I’ve been leaning toward supporting my preferred presidential candidate, Mike Maturen of the American Solidarity Party. (Here is his platform. It is imperfect, but better than what you’ll get from Trump.) Crucially, a vote for Maturen is not just a symbolic gesture in Minnesota: if Maturen gets 1% of the total (~30,000 votes), the Solidarity Party gains official status in Minnesota, which brings with it public financing. And public financing means that an alternative to the Republican and Democratic Parties — which is absolutely essential — will be able to run more candidates for more state offices in 2018. My vote for Maturen could thus do real good in Minnesota.
However, many of you do not live in Minnesota, so the practical argument for Maturen doesn’t apply. Many others who do live in Minnesota still wonder whether it is morally justifiable to help a minor party gain public financing in one state if the price is the election of the Greater Evil major-party candidate. (And, because we are a swing state, it very well could mean exactly that.)
I hear you. Heck, I agree with you: if I allow Clinton to win by supporting Maturen instead of the only viable alternative to Clinton, I won’t be able to look my daughter in the eye. On the other hand, if I allow Trump to win by voting for Trump, I still won’t be able to look my daughter in the eye! It seems I’d better study her eyes closely, because I won’t ever see them again after Tuesday!
After several weeks of thought, I think I’ve found a compromise. It’s not perfect, and I’m not convinced it is the best solution. I may still vote for my Solidarity Party of Minnesota. But it is the closest I’ve come to a solution that my conscience can accept. Some of you may find the distinctions it makes too fine, too academic, to be taken seriously. All I can say is, this is the best I can do. I offer my compromise here for those of you who might find it helpful.
Throughout this election, I have hoped that my state, Minnesota, would be a “safe state” for Clinton or Trump. This would free me to vote my conscience with no worries at all.
After all, the whole argument for voting for one of the major-party candidates instead of for a third party is that only the major-party candidates are viable alternatives to one another. But, in a safe state, there is no viable alternative to the winner, so you can feel free to vote for anyone. Even if there were a dramatic upset, enough states would already have been carried by the underdog to ensure that candidate’s victory in the Electoral College with or without your state’s help. So, no matter what you do, your vote in a safe state fits the wide definition of a mathematically wasted vote. Therefore, in a safe state, you should just vote for the person you want most to be president, even if that person is a fringe third-party candidate.
So I have carefully watched the list of safe states grow and evolve throughout this election. Sadly, Minnesota never appeared on it. The full list is below.
When you vote for a major-party presidential candidate on Election Day, you don’t actually cast a vote for that candidate. You are actually voting for a slate of presidential electors from the candidate’s political party. The electors are hand-picked party loyalists elected by the party to support the party’s presidential candidate.
In each state, the presidential electors from the winning party will meet in the state capitol in the third week of December. There, they will cast ballots for president (and vice-president). Those ballots will be sealed up and mailed to Congress, which will open, certify, and count them during the first week of January. Whichever candidate receives an outright majority of electoral votes (270 votes) is informed that he has been elected President of the United States. (This “electoral college” is a very good idea.) If no candidate receives a majority of electoral votes, the Twelfth Amendment “throws” the election to the House of Representatives, which is allowed to pick any of the top three electoral college vote-getters to be President.