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Posted by on Dec 15, 2016 in 2016 Presidential Election, Politics, Russia | 19 comments

The Electoral College’s Trump dilemma

WASHINGTON — In making what is likely to be the most consequential decision of this transition period, Donald Trump couldn’t resist petty vindictiveness.

Mitt Romney was briefly touted as the front-runner to become secretary of state. After meeting with Trump over a meal, he pronounced himself “very impressed” by the man he had described as “a phony, a fraud” during the campaign.

Trump did not accept this graciously. Citing a Trump friend, The Washington Post reported that the president-elect “enjoyed watching his dinner partner appear to grovel for the post.”

Memo to Trump’s Republican critics: Your initial instincts about Trump were right. Remember that catering to this man will bring only pain and humiliation.

Memo to those claiming that everyone should give Trump a chance now that the people have spoken: Actually, “the people” didn’t make Trump president. They preferred Hillary Clinton by at least 2.8 million votes. If Trump takes office, it’s the Electoral College system that will do it. And the post-election Trump has been as abusive and self-involved as he was during the campaign. The opposition’s job is to stand up and prevent or mitigate the damage he could do to our country.

Memo to the Electoral College that votes next Monday: Our tradition — for good reason — tells you that your job is to ratify the state-by-state outcome of the election. The question is whether Trump, Vladimir Putin and, perhaps, Clinton’s popular-vote advantage give you sufficient reason to blow up the system.

I don’t raise this lightly. The costs of breaking with 188 years of tradition would be very high. Alexander Hamilton’s Federalist 68 explaining the Electoral College is widely cited by those who want electors to stage an anti-Trump revolt. But we shouldn’t pretend that the Electoral College as described by Hamilton bears any resemblance to the system we have used since the 1828 election, when statewide election of its members became almost universal.

Yet defenders of the Electoral College cannot claim that following the state results is an explicit “constitutional” obligation. The Constitution makes no mention of popular election of electors, leaving the manner of their selection to the states. It’s worth asking why the national popular vote should be seen as meaningless while the state-by-state popular vote should be regarded as sacred.

The best response is that, as the National Conference of State Legislatures reports, 29 states and the District of Columbia have statutes that try to bind electors to their voters’ preference. But these cover only 15 of the 30 states Trump carried (plus an elector from Maine), and the popular vote shows that turning on Trump would not be a rejection of the public will.

Moreover, one passage from Federalist 68 seems eerily relevant to the present circumstance. Hamilton wrote that the electors could be a barrier against “the desire in foreign powers to gain an improper ascendant in our councils.” Hamilton asked: “How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

The CIA’s finding that Russia actively intervened in our election to make Trump president is an excellent reason for the electors to consider whether they should exercise their independent power. At the very least, they should be briefed on what the CIA knows, and in particular on whether there is any evidence that Trump or his lieutenants were engaged with Russia during the campaign.

It’s not irrelevant that Trump himself said last July of Clinton’s emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” By publicly inviting a foreign power to intervene in our election, Trump put himself ahead of the nation’s interest in holding an election that would be untainted by foreign meddling. It is one of many reasons why conscientious electors might decide that Trump is unfit to be president and may even be a danger to the country.

It will be entirely understandable if 270 or more of the electors pledged to Trump decide they are agents of their state’s voters, not independent actors. They can argue, fairly, that rejecting Trump would threaten the stability of our institutions. But the threat Trump himself presents to those institutions is why electors need to think hard before they make this decision.

And if Trump prevails, as expected, this is also why vigilance rather than acquiescence is the primary duty of those unwilling to forget everything we believed about him before Nov. 8. He’s done nothing to change our minds. Just ask Mitt Romney.

E.J. Dionne’s email address is [email protected] Twitter: @EJDionne.(c) 2016, Washington Post Writers Group

NOTE: This post was run under the wrong byline today. We have fixed the error and put this post on top. We regret the error.

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  • Brownies girl

    OK, I’m a foreigner … half American but a Canuck who had no vote. Please tell me what happens if (just by chance), the Electoral College comes up with less than 270 votes for Trump. I’m not thinking it’s gonna happen, but what if it did? What then? Thanks, BG

    • KP

      It goes to the House which will elect Trump.

      • Brownies girl

        Sh*t, there’s just NO possibility for relief now, is there? I was hoping there would be. (sigh).

        • KP

          As well, I think congress can challenge a faithless elector in which case the elector’s vote would go to the secretary of state of the elector’s state.

        • The Ohioan

          They could give 270 electoral votes to someone other than Trump or Clinton; Pence, Kasich, Romney, Ryan..

          KP is right, if no one gets 270 votes it goes to the House. May or may not be Trump once that happens.

          Each state would receive one vote regardless of population. California, with nearly 40 million citizens, gets one vote. Wyoming, with fewer than 600,000, gets one vote.

          Each House delegation would caucus and cast that state’s vote. How would that work out this fall? Thirty-two state delegations are controlled by Republicans, 15 by Democrats, three evenly split. The District of Columbia and the territories cannot vote.

          Furthermore –

          Section 3 of the Twentieth Amendment specifies if the House of Representatives has not chosen a president-elect in time for the inauguration (noon EST on January 20), then the vice president-elect becomes acting president until the House selects a president. Section 3 also specifies Congress may statutorily provide for who will be acting president if there is neither a president-elect nor a vice president-elect in time for the inauguration. Under the Presidential Succession Act of 1947, the Speaker of the House would become acting president until either the House selects a president or the Senate selects a vice president. Neither of these situations has ever occurred.

          That would be Speaker Ryan.

          • Brownies girl

            Thanks TO. You write:

            They could give 270 electoral votes to someone other than Trump or Clinton; Pence, Kasich, Romney, Ryan. KP is right, if no one gets 270 votes it goes to the House. May or may not be Trump once that happens.

            Why is it then, if it can be proven that there was nefarious involvement by a foreign country in your election — why would the winner of the election not be turned over to the *second* runner in the election who also happened to win the popular vote by a handy 2.5 million+ votes?

            The way I’m reading it is that the Republicans will win, regardless, (no matter who the leader. Ryan maybe?! Yikes!). Which seems kind of ridiculous to me. As mentioned earlier, I’m a foreigner, my knowledge of your Constitution is miles behind what anyone would consider even a half-assed expert, but I find myself wondering what your founding Fathers would say about this situation.
            My rambling queries may sound odd to you — I’m not dumb, I just don’t understand how maybe Trump can still come out on top, despite finagling from outside *foreign* sources. Maybe somebody here’s got an answer. BG

          • The Ohioan

            Well, the “proof” is the sticking point. Congress has been given some of what “proof” is available. When you’re dealing with security agencies, they are unlikely to give all their secrets away – especially since they have been under the gun for spying on US citizens without warrants in the past.

            It is possible that they have used illegal means to come to the conclusions they have and that would mean the evidence would be tainted whether in a congressional hearing, a court hearing, or in the actual electors voting or the House voting if it comes to that.

            Or they simply may not trust congress critters to keep their security methods…

            It’s unlikely that many electors will be concerned enough to change their votes. In Michigan, for instance, the electors are all Republican because Trump won the state by 13,000 votes. Those people are most likely going to vote for Trump though they don’t have to. Faithless elector laws have never been fully determined by the SC, though that may be on their agenda sooner rather than later.

            Every other state except ME and NB also has Republican or Democratic electors depending on the winner in that state. Only ME and NB have electors based on the proportion of the vote each candidate received.

            This is all because we have an antiquated system which still acts as though we are a confederation of states instead of a modern country which has standard rules for how the federal government’s legislators and executives are chosen.

          • KP

            Congress has been given some of what “proof” is available.

            Why only some? I can’t figure out why they are not sharing ‘all’ “proof” with the part of congress that is specifically geared to this. That’s the duty of the CIA as I understand it. You know more than I do, The Ohioan, so I defer to you.

          • The Ohioan

            You’d have to ask them. Maybe they have given them everything they know; it would probably be the first time. 🙂

      • Shannon Lee

        maybe…they could also go with McCain or Ryan. It is completely up to them. All they need to do is get Fox News on board and Fox will tell the lemmings that Russia elected Trump….so the House had to chose someone else. Done deal.

  • JSpencer

    An opportunity for the Electoral College to engage in something called, “courage”. That said, I expect them to put their tail between their legs.

    • The Ohioan

      Courage, indeed. The Republican elector who publicly announced that he will not vote for Trump has reported that he, his wife, and his children have all been harassed and threatened on the internet.

      Courage is serious stuff.

  • Robert P. Coutinho

    Given the proclivities (I think that’s the right word) of Trump’s supporters; jumping ship would probably cause a civil war (if Trump were denied the White House).

    • The Ohioan

      Civil wars should only be fought for righteous causes……

      • Brownies girl

        TO, would this one be a righteous cause, ya think? BG

        • The Ohioan

          Well, civil wars are a bloody business and righteousness is difficult to determine once you’re in one. It’s not a step to be taken lightly and some would say never. Everyone has their limit on what their integrity will survive, however, and must determine if that limit has been reached and how to proceed when that happens.

          We can’t all be Irena Sendler, after all.

        • JSpencer

          We’ll find out how righteous a cause it would have been based on how much damage he does while in office. Of course by then it will be too late.

          • The Ohioan

            It’s never too late to fight for righteousness; it will make it harder and take longer, though – assuming no outside interference.

            We will learn how adept our children are in following in the footsteps of their grandparents’, in fighting for civil rights, and great grandparents’, in fighting McCarthyism, when faced with injustice.

          • JSpencer

            I like your attitude Ohio.

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