THE ELECTORAL COLLEGE

THE ELECTORAL COLLEGE

In 1996, a friend of mine was on her way to Albany to cast her vote as a member of the Electoral College in the State of New York.  

She was travelling with the then Chairman of the Democratic Party of the county where she worked. She was also driving and going a little too fast. When the inevitable State Police vehicle pulled her over, the Chairman told her to let him do the talking.

The policeman approached and asked for her license and registration. She gave it to him.  When he asked if she knew why she had been pulled over, the Chairman stepped in, explaining that she was on her way to the Electoral College and a little late.

The cop said nothing and went back to the squad car to write the ticket.

When he returned, the Chairman tried one more time.  "But officer," he said, "there really should be an exception here.  She's on her way to the Electoral College and cannot be late."

The trooper handed her the ticket and said "Buddy, I don't care what school she is going to.  She was speeding."

Then he walked away.

Prior to 2000, not many people knew what the Electoral College was and even fewer could explain how it worked.  Then George W. Bush received 500,000 fewer votes and, for the first time in more than 112 years, the popular vote loser became president because he won enough states to give him an Electoral College majority.

Now, Hillary Clinton has beaten Donald Trump by more than 2 million votes but Trump will presumably be the next president by virtue of having won enough states to garner more than 270 electoral college votes. Unlike in 2000, however, there has emerged at least a modest movement to encourage the electors to vote their consciences and deprive Trump of the Presidency.  

Harvard Law Professor Lawrence Lessig wrote a Thanksgiving day op-ed in the Washington Post arguing that the Electoral College "is meant to be a circuit breaker -- just in case the people go crazy."  In his view, they didn't. Clinton received more votes, a lot more votes, and the electors should confirm that by making her President.  At the same time, a lawsuit is about to be started by a Colorado elector who wants the courts to declare unconstitutional laws in twenty-nine (29) states binding electors to cast their Electoral College vote for the candidate who won in that state.  So now, unlike in 2000, there is at least some effort afoot to, as it were, free the electors.

Would this be legal?

The answer is almost certainly . . . 

Unclear.

The Electoral College was established in the provision of the Constitution -- Article II, section 1-- that sets forth how the President and Vice President were to be "elected." It provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress"; that the "Electors" were to "meet in their respective States and vote by Ballot for two Persons"; that the signed and certified list of those for whom the electors voted was to be transmitted under "seal" "to the Seat of the Government of the United States, directed to the President of the Senate";  that the Senate President -- "in the presence of the Senate and the House of Representatives" -- was to open the certified lists and count the votes; and that the person having the majority of votes was to be designated the President and the runner-up the Vice-President. 

In 1804, following the embarrassing election of 1800 in which both Thomas Jefferson and Aaron Burr were named by an equal number of electors despite the fact that they had run as a ticket with Jefferson in the top spot and Burr his vice-presidential second,  Article II was amended to require the electors to actually cast two ballots, one naming the individual for whom they voted for President and the other the individual for whom they voted for Vice-President.

As with many other provisions of the Constitution, the first to comment at length on the Electoral College was Alexander Hamilton in Federalist No. 68.   Though Hamilton assumed that the electors who formed the Electoral College would be "chosen by the people," he no doubt thought popular input could take the form of either a legislative appointment of electors, the legislatures themselves having been popularly elected, or a direct vote of the electors by the people. In any case, however, that was where popular input was to end insofar as electing the President and Vice-President was concerned.  

As to the actual election of President and Vice President, that -- Hamilton thought -- was to be "made by men most capable of analyzing the qualities adapted to the station and acting under circumstance favorable to deliberations," and by a body which would exercise "a judicious combination of all the reasons and inducements which were proper to govern their choice."  In his mind, "[a] small number of people, selected by their fellow-citizens from the general mass" would "most likely . . . possess the information and discernment requisite to so complicated an investigation." 

Hamilton clearly believed the choice made by electors would be deliberative and considered.  He praised the Electoral College as an instrument that would "afford as little opportunity as possible to tumult and disorder," a possibility he deemed "evil" in selecting a President.   He also thought that dividing the choice by selecting groups of electors who then convened and deliberated in each of their respective (but separate) states made it less likely that the election of a President would "convulse the community" with the type of "violent movements" that a focus on one candidate might create. His theory was that meetings in several states would limit the possibility that a single populist demagogue could control the ultimate outcome.  

He believed that the college, by virtue of being a newly elected and temporary body formed solely for purposes of  a single Presidential election,  helped guard against "intrigue and corruption," especially by "foreign powers" who might otherwise find it easy to "gain an improper ascendant in our councils."  To that same end, he praised the fact that Senators, members of the House of Representatives, and all other "officers" of the United States were excluded from the Electoral College; their absence made it less likely that they could control the President via their electoral votes.  He also thought the college would generate independence in a President, essentially by making it unlikely that, once elected, the President could identify (and lobby or help) those who would be responsible for his re-election.  

For Hamilton, all these advantages flowed from the Electoral College members' "transient existence and . . . detached situation." They would be free  from  "sinister bias, " a phrase he took to include both corruption and the failure to do one's "duty,"  and would elect the President and Vice President based on "reasons and inducement . . . proper to [the] choice."  He thought this would eliminate from the office of the Presidency those who only possessed "[t]alents for low intrigue, and the little arts of popularity".  Instead, the mechanism chosen would create the "constant probability of seeing the station filled by characters preeminent for ability and virtue."

Thus spaketh Hamilton.

His view of how the Electoral College would proceed  had a very short shelf life. 

It worked as he predicted in the initial election of Washington in 1788.   Thereafter, however,  the notion of independent deliberation by a council of wise electors more or less ended and electors simply voted for candidates to whom they had previously committed their votes. Commitment, however, was not required by the Constitution, and today commitment is only required by statute in twenty-nine (29) states.  All the others, in theory at least, allow electors to vote as they please. 

Are those twenty-nine (29) commitment statutes constitutional?

For Hamilton, the answer would be "No."   It is clear that he thought the right of state legislatures to determine the "manner" in which each state appointed its electors merely entitled those legislatures to establish  the mechanism through which one became an elector. States could decide to have the legislature itself appoint the electors; they could have those electors chosen by popular vote and they could decide the districts in which that vote could be taken. What they could not do is instruct the electors how to vote.  That, for Hamilton, Article II forbade.

Whether the Supreme Court agrees with Hamilton is another story.  

There has never been a case testing whether any of the various statutes which order electors to vote a certain way are in fact constitutional.  The closest we came to resolving that issue was in Ray v. Blair, a 1952 case in which the Supreme Court held constitutional an Alabama statute that required those running to be nominated as  electors on the Democratic Party line to sign an oath committing, if elected, to vote in the Electoral College for the national party's nominee.  

Over dissents by Justices Douglas and Jackson, the Court said this was permissible.  On the question of whether the Constitution "demands absolute freedom for the elector to vote his own choice," the Court noted that, though the Constitution "says the electors shall vote by ballot," it doesn't "prohibit an elector's announcing his choice beforehand."  The Court also noted that even if such pledges were "legally unenforceable because violative of the assumed constitutional freedom of the elector under  . . .  Art[icle] II," that would not make such a  pledge by a candidate in a party primary unconstitutional.  As the Court put it, "Surely one may voluntarily assume obligations to vote for a certain candidate."

So, if Hamilton is your guide, the electors cannot be committed by statute to vote for any particular candidate for President and instead must be free to choose.  If, however, the Supreme Court is your guide, the rule is uncertain.  So far as we know now, an elector can voluntarily commit to voting a certain way beforehand.  

Whether he or she can be ordered by statute to do so has not been decided.

Stay tuned.  

Professor Lessig, that Colorado elector ready to file suit, and millions of disaffected Hillary voters are hoping enough members of the Electoral College will disregard any commitment statutes and refuse to give Trump the Presidency.  For them, Trump is a bridge too far, an amoral, narcissistic demagogue to whom the country's future, let alone its nuclear codes, cannot be entrusted.  With them, it's not about ideology or party or policy; it's about the  inherent danger of appointing as President a pathological liar who has utter contempt for the rule of law. 

On this view, Hamilton's Electoral College is all that stands between the country and utter disaster. And Federalist No. 68 is a road map on how that body should work to avoid such a disaster.  In fact, for them, Hamilton was prescient. During the election, Trump showed little other than "talent for low intrigue"  as a "foreign power" tried to manipulate the electorate in favor of a demagogue.

If they are right, and can convince enough electors to refuse Trump, the notion of "all hell breaking loose" will acquire new meaning. Republicans will sue and the case will get to the Supreme Court in five seconds.  It will also get to a Supreme Court with only eight justices, so the way in which any case comes up will matter.  In fact, whether a Circuit Court of Appeals enforces commitment statutes in its circuit or holds such statutes unconstitutional and frees the electors to vote their conscience, if the Supreme Court later deadlocks on whether that appellate decision was correct, the Circuit Court decision will stand.

In that case,  the next President will have been chosen not just by unelected judges ,  but by unelected judges neither appointed to nor working in the Supreme Court , whose jurisdiction as  Circuit Court judges is limited to only a small part of the nation.

None of this has even happened before.

The way to bet is that it won't happen now.

That, however, was also the way to bet on November 8.

THE DEATH OF ARGUMENT

THE DEATH OF ARGUMENT

As I've  talked to friends throughout the country over the past ten days, we have spent enormous amounts of time wondering what went wrong this past election and consulting a bevy of commentators weighing in on the subject.

The answers have ranged from the reasonable -- lower turnout among erstwhile Democratic voters, the enthusiasm gap, frustration among old economy workers, the media's obsession with "info-tainment" as opposed to information  -- to the ridiculous -- anyone who voted for Trump is stupid . . . or racist . . . or sexist.

I have a different culprit.  It is . . .

The death of argument.

I am talking about "argument" in the classical sense, not in the screaming-at-your-drunk-uncle sense. Real argument, as classically taught, is about premises, facts, logic and conclusions that follow.  It abjures -- in fact, disdains -- personal insult, grandstanding, and the mindless repetition of unproven assertions.   Apropos of the disdain for personal insult, there is even a short-hand term used to disqualify any embrace of that approach;  you just point out that your adversary is engaging in ad hominem attack, that he or she is attacking your person but not your position,  and the attack  is rejected.

Not so long ago, political argument occupied  a place in the world where it at least lived close to that classical construct.  There was always hyperbole and campaigns trucked in dirt and tricks and everything in between as they strove to render their opponents not just unqualified but also unfit. Still, however, if you read transcripts of the Lincoln-Douglas debates from 1858, or even the Kennedy-Nixon debates from 1960, and then compare those to what was on offer for the past year and a half in our most recent election season, the difference is beyond striking.

It is scary. 

It's hard to even imagine Lincoln, Douglas, Kennedy or Nixon going after an opponent because their "face" (as in "Look at that face") was unacceptable, but that is what Donald Trump did to Carly Fiorina. Nor can one imagine those storied combatants commenting on their opponents' height (Stephen Douglas was short) or propensity to sweat (Nixon under the lights), but that was a routine trope from Trump and others in the GOP debates.   

We now live in the world of Twitter.  140 characters and no more.  It is a world that makes argument in the classical sense impossible. There isn't the space to structure the required fact-based premises that lead to reasonable conclusions.  

This is bad enough when it comes to characterizing interactions between friends and family on a host of every day back-and-forths that matter -- personal relationships, for example,  that require trust and the type of transparency abbreviated computer-speak can hardly encourage. It is fatal, however, in the context of serious public decision-making -- as in, for example, a Presidential election.

Put differently, I am more than happy to embrace Twitter as a functional and efficient tool that either helps avoid mix-ups (tweeting "Please pick up a quart of milk" to your spouse at the store) or sends someone to a link that actually develops an argument.  

I do not, however, want it to become the President's default means of communication.

And therein lies the problem.

I am being told by assorted relatives and others that I must give Trump a chance.

To do what?

Tell me in a tweet that everything on his transition is going smoothly when I can see with my own eyes and hear with my own ears as heads roll, names are taken, and national security experts like Mike Rogers and Eliot Cohen are black-listed?

When I observe erstwhile allies consigned to the dungeon because they were not allied enough when those Access Hollywood tapes were disclosed  (I am thinking of you Chris Christie), and early appointees include those who have trucked in white supremacy (that'd be you, Bannon)?

Trump has many problems.  In fact, he has too many problems (misogyny, racism, dishonesty, inattentiveness, a hair trigger temper, boorishness, vulgarity, narcissism, etc.).    He is lucky the list is so long.  It has led to a sort of public ennui.  No one can focus on any one problem and explain how it will hurt us because in the time it takes to do so Trump has exhibited yet another fatal flaw. Meanwhile,  no one -- or at least not enough "ones" -- noticed that, amidst the ever-growing litany of negatives, Trump offered no positive arguments, no thought out positions defended with facts where logic was brought to bear and a conclusion followed from a reasonable premise.  

It was all assertion.  

Punctuated with barnyard epithets, and wrapped in the attitude that the only appropriate response to opponents is the middle finger, an attitude that 140 characters encourages . . .

Because an argument requires many words but "fuck you" requires only two.

This is Trump.  Build a wall.  Deport 11 million illegals.  Lock her up. Cut taxes. The lying media. We will win. And be great again.  

Government in seven slogans.

But no why. . . or how . . or truth.  In short . . .

No argument.

Many are worried that acceptance of Trump, or even a generalized calm in the face of his ascension to  the Presidency, will "normalize" his behavior, that it will now be acceptable to become or be President via a tweetstorm of third-grade rank outs and garish insults.

Really?

I have news for you. 

Look at the internet, at Facebook, at Twitter.  

We're already there.  

We killed argument.

And along with it decorum and decency.

And now the consequences are on their way to the White House.

OH, BOY

OH, BOY

I was wrong.  

I never thought the country would vote for a candidate who called Mexicans rapists, bragged about grabbing women's genitals, mocked the disabled, for years supported the birther fraud, had no policies he could explain in any coherent fashion, is narcissistic and probably clinically ill at some level, and is not at all prepared to be President.

We are in big trouble.  

For proof, see second paragraph.  

The argument from Trump's supporters is that he is not the racist, sexist, inarticulate charlatan I think he is.  The problem with that argument is that the evidence for these realities comes from Trump's own mouth and behavior.  Earnest supporters of the Donald nevertheless assert the contrary, saying the problem with people like me is that I take Trump "literally but not seriously" while they take him "seriously but not literally."  

That's cute.  

Now all of Trump is reduced to a metaphor. 

Still, however, I am perplexed. 

Because . . . 

I cannot, for the life of me, conjure in my mind the metaphorical meaning of "grab[bing]" women "by the pussy."

The pundits are having a field day.  All of them are doing apologetic cartwheels as they fess up to missing the possibility that His Hairness could actually win.  As with all things "punditry," however, these should be taken with a large grain of salt.  Clinton won the popular vote and lost all the states she was predicted to win -- Florida, Pennsylvania, Michigan (perhaps; the final vote is not yet in), and Wisconsin -- by small margins.  She even lost some states she was predicted to lose -- Arizona, Georgia, Texas -- by smaller margins than would normally have been the case had past been prologue. The pundit notion that Hillary was thus a uniquely flawed candidate is a bit over the top.

So is the notion that Bernie . . .  or Elizabeth Warren . . . or Joe Biden . . . 

Would have won.

All would have been painted as out of touch and unacceptable in the 24/7 negative campaign that was Trump's.  

To be painfully honest, going negative is what Trump does best. Always has been.  He learned it at the feet of Roy Cohn, Joe McCarthy's doppelganger in the 1950s who made lying with a straight face a habit until Donald Trump turned it into an art form.

So Bernie would have been painted as a Communist,  Warren as an unvarnished Harvard professor who never created a job in her life, and Biden as . . . well . . . Biden -- an over-the-top. loose-lipped, forever politician (remember, Biden was elected to the Senate when he was 29 and has literally been a politician for more or less his entire adult life).  

And, oh, by the way, lunch-bucket Joe also  lives in a mansion in Wilmington, so the Scranton working-class-roots thing would have been a bit too much as well.

None of this would have been fair.  Bernie is not a Communist; Warren is a courageous and informed policy wonk whose programs, especially those involving oversight of Wall Street, would actually work; and Biden is authentic.

But none of that would have mattered to our President-elect, the Tweeter-in-Chief.

Where to from here?

Though -- in light of my track record this year --  I shouldn't, I will venture some predictions.  

The first is that all those white, working class voters in the rust belt are about to be very disappointed.  

Bernie had a program for them.  It involved something on the order of an FDR-like New Deal where government spending created jobs in places from which they have fled, and big-ticket expenses like health care and education were paid for publicly.  

That's not what Trump will do because that is not what the institutional party he now controls will deliver for him.  

They will cut taxes, eliminate Obamacare, repeal Dodd-Frank, and tell you the free market will take care of the rest.  

But they will be  wrong.  

We have seen this movie once before.  

Health savings accounts cannot fund medical care for poor people who have no paychecks or for the shrinking and struggling middle class living paycheck-to-paycheck.  Wall Street unregulated is Wall Street run amok,  at the end of which one is delivered into a financial meltdown tantamount to a depression.  And tax cuts from Washington do not create jobs in Flint.  They didn't during the last Administration in which the GOP controlled the House, Senate and Presidency, and they won't in this one either.

Now, auto-industry bail outs, like the one Obama created at the beginning of his Presidency when Chrysler, Ford and GM were on their heels and about to die, do create jobs in Flint.

But Trump and his fellow-travelers were against that legislation and presumably still are.

The second is that the trade deals that exist won't be repealed and the one on offer (TPP) may still pass.  

The fact of the matter is that free trade significantly increases our nation's wealth.  The problem with free trade is that the wealth created is very unevenly distributed.  Were, however, free trade to end, the economic pie would shrink, dramatically,  and the GOP Trump now runs won't give him the votes to do that.  Instead, the new administration will tinker at the edges, bringing more claims under the deals to try to stop currency manipulation or dumping.  In other words, on free trade, the Trump administration will pretty much do what would have been done in . . . a Hillary Administration.

The third is that there are now a host of national security experts who are very afraid.  

This I know for a fact,  from sources I cannot disclose.  

Trump is dangerously uninformed and misinformed on issues of national security and needs to be set straight fast.  Putin is not an ally.  The middle east will not move forward if American troops are used to try to create the peaceful order only the people living there can create.  Water-boarding didn't stop acts of terrorism in the past, won't do so in the future, and is a crime.

The good news is that Trump spent 90 minutes with Obama yesterday, a meeting that no doubt amounted in large part to a polite tutorial on the subject of national security.  The other good news is that all the "Never Trump" DC policy mavens who swore they would not help him are now coming back because they think they have a patriotic duty to stop a potential train wreck.  The bad news is that the President-elect is that wreck.

The fourth is that the Supreme Court is lost to the right-wing if Trump gets to pick three Justices and  actually appoints the people he says he will.  

All of them -- and I mean "all" -- will overturn Roe v. Wade (and the right to gay marriage, if they get a chance), and radically shrink the federal government's ability to pass regulatory legislation founded on the Constitution's commerce clause.  A friend yesterday predicted that this latter reality means an end to the Clean Water Act and Clean Air Act. 

That remains to be seen.  

But it is worth noting that the kind of federal role right-wing jurists envision is basically the role the federal government had in the 19th century.  That role is pre-gay rights, pre-abortion rights,   pre-civil rights and pre-New Deal.  

Or -- to put it bluntly -- a world you and I . . . 

Will not recognize.

Trump's supporters will say that my parade of horribles either will not be that horrible or will not happen.  They'll assert that Trump is a pragmatist, a businessman, a fellow used to getting things done.  

That, however, is not what I see at first pass.

What I see  is a guy totally enamored of himself with a penchant for holding grudges and skewering rivals by whatever means, foul or fair, will work.  To that mind-set is  married a character loyal only to those who never waver in their support.  

His core advisers consist of his kids, his son-in-law Jared Kushner, the three GOP amigos (Rudy, Christie and Newt), and (maybe) Mike Pence.  I am not convinced any of them can tell him "No" and make it stick, and of the pols in the room, all are destroyers, not builders. Rudy and Christie come at destruction from the vantage point of prosecutors with sharp elbows and pols who shut down bridges, Pence from the vantage point of a right-wing talk radio industry (where his political career began) that demeans much more than it informs, and Newt from his early days in the House where he used the politics of personal destruction to end the Democratic Party's control of that body.  In these advisers, Trump has found soul-mates.

For some, Hillary Clinton didn't lose the election last Tuesday.  She lost it in 1787 when guys in wigs created an anomalous (and anti-democratic) institution called the Electoral College that in two of the last five Presidential elections has awarded the office to the popular vote loser. The country is seriously and significantly divided.  Anti-Trump street protests have already erupted in dozens of cities. There are enormous questions concerning the President-elect's temperament, competence and good faith.  His "victory" is hardly a mandate.

A humble administration in these circumstances would govern non-aggressively, strive mightily for bi-partisanship, and delete the twitter account. 

Unfortunately, these folks are not that humble.

I was wrong about this election once before. 

I hope I am wrong again.

C'MON AMERICA

C'MON AMERICA

You're not really serious, right?

You're not about to elect a pathological liar, transparent sexist, more or less confessed racist, and inattentive charlatan to the Presidency.

You don't want an authoritarian con-man in the White House.

You'll reject the notion that being Commander-in-Chief is a position suitable for anyone with a part-time attention span and full-blown narcissism.

You don't want a President who will out-source the job to anyone who praises him because he hasn't a clue about policy and no desire to learn.

You've had it with a campaign from a GOP nominee which in truth has amounted to nothing but insult.

You understand that Presidential elections are not won by exhibitions of bad taste, adolescent immaturity writ large, and a foul mouth.

You get it that we don't want a thug in the White House,  or even a non-thug who encourages the thugs among us.

You understand that the history of this great country does not guarantee its survival in the wake of a fascist ascension, that the blood shed on battlefields throughout the world is not honored if we give away our country to a fool who brags about assaulting women, punching dissenters, disparaging foreigners, and playing us all for chumps.

You understand that you are tired of the sheer boredom of him, and of all his nonsense . . . and meanness . . . and utter lack of empathy or fellow-feeling.

You think that being President is not about how rich you are, or the amount you inherited (or were loaned), or the number of concrete edifices adorned with the forever (and often faux) boast of your name.

You understand that quips are not policies, that ad hominems are not arguments, and that the ad nauseaum repetition of promised victory, the path to which is never explained because (i) he can't explain it and (ii) it doesn't exist, is just a canard hiding the absence of any real campaign.

You know that being smart is not a crime, that being polite is not merely "politically correct," that those who disagree with you cannot automatically be deemed "corrupt,"  and that winning is about a lot more than promoting yourself and running down everyone else.

You don't want  a President who stiffs the little guy because he can and then calls it good business, or one who stiffs the taxman and calls himself smart and the rest of us, by implication, dumb.

You know that women are not numbers, assault is not sexy, immigrants are not criminals, and athletes in locker rooms are not pigs at a troth.

You understand that this complex and challenging world cannot afford the four years of neglect his election would guarantee.

Finally, you understand that the two people running this year are not remotely comparable; that the both of them are not "equally bad"; that  she is a smart, competent professional, flawed in some respects but possessed of enormous intelligence, fortitude and good faith; and that he, on the other hand, is an unmitigated disaster in waiting, ego and id and apparently nothing else, and not remotely qualified for the job he would have us give him.

And now, America, that you understand all of this . . .

Do the right thing.  

She has a name.  

Hillary.