News & Politics

The Republic's Last Line of Defense Against Trump: The Electoral College

The twelve Indiana electors take an oath before casting thier ballots for the president and vice president at the Indiana Statehouse in Indianapolis, Monday, Dec. 18, 2000. The twelve electors from Indiana cast their ballots for George W. Bush and Dick Cheney. (AP Photo/Michael Conroy)

If you missed the totality of what Donald Trump was saying yesterday about his response to the Brussels bombings, you should read the following carefully. The probable Republican nominee for president of the United States was positively giddy about smashing international law regarding the treatment of captives and exhibited an almost childlike glee at the prospect of inflicting pain:

On CNN, Trump very excitedly explained to Wolf Blitzer,

“Look, I think we have to change our laws on the waterboarding thing where they can chop off heads and they can drown people in cages and heavy steel cages and we can’t waterboard. So we have to change our laws and we have to be able to fight at least on an almost equal basis.”

Once again he came this close to admitting that when he says we have have to do “much worse” than waterboarding, he’s talking about using their methods.

Blitzer followed up by asking, “So should you start torturing him right away or would you see if he would cooperate and share information because Belgium Authorities, Belgium police say he has been talking?” The answer was predictable:

“Well you know he may be talking but he’ll talk a lot faster with the torture. If he would have talked you might not have had to blow up all these people dead and all these people horribly wounded, because he probably knew about it. I would be willing to bet that he knew about this bombing that took place today.”

Changing U.S. law on waterboarding would not affect the legality of the practice since the strictures against waterboarding are contained in various international accords. Is Trump too ignorant to know this?

Donald Trump is a menace to the laws of civil society, the Constitution, and to international order. To many of us from both parties, there is strong agreement that everything possible must be done to stop him from achieving power.

Vox populi, vox dei is irrelevant. When fully one third of the U.S. population cannot name a single right protected by the First Amendment, action must be taken to prevent the dumbest and most oblivious among us from picking the next president.

Thankfully, it is likely that Donald Trump will be slaughtered in the November election. There has never been a candidate with such an astronomical unfavorable rating in the history of modern presidential politics. My back-of-the-envelope calculation has Trump losing between 29-34 states. If Hillary Clinton gets 55% of the vote, the GOP loses the Senate. If Clinton gets 60%, they can probably kiss the House goodbye.

But there is a chance — a very small one — that the Clinton campaign implodes and hands the election to Donald Trump. It could be a health issue. It might be her indictment for crimes connected with her email server. It may be something below the radar that explodes in the last few days of the campaign.

So the chances of Donald Trump losing the presidential contest are not completely zero. If that nightmare scenario were to unfold, there would still be the necessity of doing everything possible to prevent Trump from taking office.

At that point, the only thing that could stop Trump would be changing the minds of presidential electors who are scheduled to meet when the Electoral College convenes on December 19, 2016, to confirm the election results. Theoretically the electors must vote for the candidate who won their state. But over the years, 157 “faithless electors” have cast ballots for another candidate.

Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.

Sometimes electors change their votes in large groups, such as when 23 Virginia electors acted together in 1836. Many times, however, these electors stood alone in their decisions. As of the 2004 election, no elector has changed the outcome of an election by voting against his or her party’s designated candidate.

Despite these 157 faithless votes, and a Supreme Court ruling allowing states to empower political parties to require formal pledges from presidential electors (Ray v. Blair, 343 US 214), 21 states still do not require their members of the Electoral College to vote for their party’s designated candidate.

There are 29 states (plus the District of Columbia) that require faithfulness issue a small variety of rarely enforced punishments for faithless electors, including fines and misdemeanors.

There is plenty of room for mischief making by a determined, organized opposition. For instance, the procedure for naming electors varies greatly from state to state. Generally, the political parties nominate electors at their state party conventions or by a vote of the party’s central committee in each state. Candidates submit a list of rock-solid loyalists for the party to choose from.

But the procedure could be altered by the party leadership. There’s nothing set in stone that says the candidate’s preferred electors must travel to Washington on December 19 to cast their vote in the Electoral College. As long as any court challenges are resolved by December 13, whatever means a state opts for to choose its electors is legal.

The electors would then be free to cast their votes for anyone — presumably whomever Trump chooses as vice president. Or, the electors could choose to abstain and deny Trump the 270 electoral votes he needs to assume the presidency. At that point, it would get extremely interesting as the election would be thrown to the House of Representatives. Anyone who met the minimum requirements for being elected president could be chosen.

Desperate, unlikely, anti-Constitutional, radical — such a scenario is all that and more. But I would add the word “necessary” to that list. The Electoral College, an arcane and nearly useless appendage to our Constitution, might be the only thing that stands between us and a disaster of a presidency that would threaten our liberties and the peace of the world.