Lawrence Lessig says that the Electoral College should select Hillary Clinton as our next president, which is not unreasonable on its face. The Electoral College serves two distinct purposes. One is that it creates dozens of distinct elections rather than one nationwide election. There are advantages to this. One advantage is that it’s easier to do a recount in one state than it would be to recount every ballot cast in the nation. Another advantage is that it forces candidates to do more retail politicking than they would do if they were only concerned with jacking up nationwide turnout. But this consideration is secondary.
There are also the actual Electors to consider and if Alexander Hamilton is to be believed, they only really exist to exercise their independent judgment.
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, 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. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. –The Federalist Papers, No. 68
We could have the votes assigned automatically based on the winner of each state or the winner of each congressional district, but that’s not how it was designed. The Electors exist to overrule the voters. That’s really their only purpose. So, if they think the voters have elected a narcissistic moron, they have the right to say “sorry, no” and cast their votes for someone else.
The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.-The Federalist Papers, No. 68
We may not like them having that discretion and some states have passed laws that attempt to take that discretion away, but those efforts probably wouldn’t stand up in court. If we want to really take away their discretion, we need to amend the Constitution.
Lessig makes an argument based primarily on the fact that Clinton won the popular vote and that therefore denying her the presidency is destroying the idea of one person, one vote.
This is nonsense for the simple reason that the candidates would have run their campaigns completely differently if they were trying to win the popular vote instead of the Electoral College. They would have spent more time in Chicago and Los Angeles and a lot less time in North Carolina and Nevada. They would have runs ads in different places with different messages. The may have had entirely different messages and even some different policies.
No, we can’t blame Trump for winning according to the rules. Losing the popular vote in an interesting factoid, but it’s not a mark against his victory.
What Lessig should have argued is that the Electors should plainly judge Trump a menacing incompetent and reject him with extreme prejudice.
This is a justifiable argument in our current circumstances.
However, even this is not a slam-dunk case because it would cause immense civil unrest. It takes a certain arrogance and perhaps some unwarranted self-assurance to insist that you know that a Trump presidency will be worse than the problems that denying him the presidency would cause.
At the end of the day though, it’s a judgment call. And the Electors exist for precisely this reason, to make this kind of judgment.
Trump is already demonstrating his unfitness for office in many ways. He’s using unsecured phones, dabbling in nepotism, soliciting bribes, brazenly seeking to profit off his office, taking conflicts of interest to places we’ve never seen before, ignoring his intelligence briefings, settling lawsuits for defrauding people, making an anti-Semitic white nationalist his chief strategist and a raving Islamophobe his national security advisor, and his election was orchestrated in large part by Russian interference.
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. –The Federalist Papers, No. 68
Under this set of circumstances, it would be reasonable to overrule the verdict of the people.
But, let’s not pretend that it wouldn’t cause serious problems.
We’d be trading one kind of trouble for another.
Lessig could have made his case on the basis of this kind of choice, but he chose to talk nonsense about the popular vote.
The popular vote is a different debate. Maybe we want to do away with the Electoral College altogether. But that’s a matter for the future. Right now, we have Electors. And those Electors still have a choice to make on December 19th when they convene and vote.
I am sure that Trump will be their choice.
Based on what Alexander Hamilton intended, I am not at all sure that Trump should be their choice.