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‘Faithless electors’: What will happen if more decide not to vote for Trump?

REUTERS/Shannon Stapleton
President-elect Donald Trump speaking at a USA Thank You Tour event at Crown Coliseum in Fayetteville, North Carolina, on Tuesday.

Christopher Suprun, a Republican elector from Dallas, Texas (and by “elector” we mean here one of the actual 538 people who will cast electoral votes in the real, final, constitutional step in the process of choosing a new president) announced Monday in an op-ed in the New York Times that he will not cast his electoral vote for Donald Trump.

Even though Suprun was chosen as an elector by the Texas Republican Party in the clear expectation that he would vote for the Republican nominee, Suprun considers Trump unqualified and unfit to be president. And he is riding a never-Trump boomlet that wants to argue that the last, best hope to prevent his election is to get electors, in states that Trump carried, to refuse to vote for him in the (sort of nonexistent) Electoral College.

The legal argument is that the weird job of presidential elector was put into the Constitution to empower a group of people to use their judgment about who was fit to be president, not just to rubber stamp the result of the popular vote in their home state.

As a historical matter of what the framers of the Constitution had in mind, he’s right, although that understanding of the role of electors went out of fashion long ago.

So far as I know, Suprun is the only elector to so far make a public announcement of his intention to become a “faithless elector,” which is the traditional term for electors who don’t vote the way they are supposed to, according to the Electoral College system as evolved.

But, given the Trump situation, there are other electors who feel as Suprun does, and who are considering acting on that feeling. The “faithless elector” deal has happened before, although never in a way that changed the outcome of an election, and I’m highly skeptical it will happen this time. But a great many unexpected things have happened this year.

The situation is further complicated because some states have enacted laws binding the electors to vote for the nominee of their party, if that party wins the state. Others have not.

306 electors are pledged to Trump

Pending the outcome of several recounts in fairly close states, 306 electors are pledged to vote for Trump. It takes 270 electoral votes to win the presidency via the Electoral College. In the (still, to me, unlikely) event that enough other Republican electors were to follow Suprun’s example to pull Trump’s total below 270, we would have one heck of a constitutional crisis and possibly blood in the streets.

Lawrence Lessig
Lawrence Lessig

But a high-powered legal team is working hard to resurrect the right of electors to use their own judgment, and they are in talks with several who want an alternative to voting for Trump. Those electors are calling themselves “Hamilton Electors,” which is a reference to Alexander Hamilton, one of the framers of the Constitution and the author of one of the “Federalist Papers” that explained the framers’ thinking in turning the choice of the president over to a group of electors.

The leading member of the legal team is Harvard law professor Lawrence Lessig, holder of an endowed chair and a progressive activist. Lessig, by the way, was briefly an announced candidate for the Democratic presidential nomination last year, but ended his campaign before the Iowa caucuses. Here’s Lessig’s piece, describing some elements of the argument he wants to make and offering his assistance to any electors who want to exercise their freedom to vote their conscience.

Laurence Tribe, also a Harvard law professor and perhaps the most prominent of contemporary liberal legal lions, tweeted on Monday that he will provide pro bono (free of charge) legal representation to any elector who follows Suprun’s lead in asserting the right to exercise their own judgment in casting their electoral vote.  A California law firm is offering its free assistance to the Hamiltonians, those wishing to make the argument, and a couple of Democratic electors from Colorado have filed suit making the argument, which is weird because Clinton won Colorado.

I believe you’ll be seeing more news about this every day for a while and, whichever outcome you might be hoping for, you can decide for yourself whether it has any chance.

Laurence Tribe
Laurence Tribe

I am a long-time critic of the Electoral College. Here is my piece summarizing 10 reason why it’s a bad system, of which number one is that it creates the possibility that the loser of the popular vote will win the election, as happened this year for the fifth time in U.S. history. In the current instance, the margin of Hillary Clinton’s popular vote victory, currently 2.65 million votes, is by far the largest margin ever in these popular-vote-winner-electoral-vote-loser scenarios. Looking at the demographic trends, there is reason to believe that these loser-winner scenarios will become more common in the future.

But the Electoral College system is in the Constitution and it would be unimaginably hard to get it out, given the high bar for amendments, the current partisan and ideological polarization, and the likelihood that the Electoral College system will continue to favor Republican nominees. You probably won’t get a two-thirds vote of both houses of Congress, followed by ratification by the legislatures of three-fourths of the states, to change the Constitution in a way that Republicans would believe harms their chances of winning future presidential election.

So my purpose here is to try to put the Lessig/Suprun/Tribe-and-others’ challenge into historical/constitutional perspective and then watch with interest to see how far it goes.

Divining the framers’ intentions

The idea that the key to interpreting the Constitution is to divine what the framers intended gets more and more ludicrous with the passage of time. Many of the framers were great men (all men, of course, and all white), but many of their ideas cannot be reconciled with modern reality. Their vision of the role of the presidential elector is an excellent example.

In fact, when the framers invented the role of presidential elector, they clearly did intend for the electors to be able to vote based on their own judgment of who would be the best president. That function of the role of presidential elector has obviously withered over time. But the constitutional language has not changed materially.

If you believe — as we are all taught to believe no matter how absurd it becomes as the centuries since the founding go by — that the correct way to interpret constitutional language is to investigate what the language was intended to mean at the time it was written and ratified, then Suprun and Lessig have a pretty strong argument. In historical terms. It’s hard to dispute that the men who created the job of presidential elector meant for those electors to exercise their own judgment, which is what Suprun proposes to do. Here’s the historical argument for that proposition:

The framers created an office of president, for various reasons. It was an office with no serious precedent at the time, other than some similarity to kings. But after recently overthrowing the rule of a king and establishing a democracy (really, 13 separate loosely confederated democracies before 1789), the idea of concentrating so much power in a single individual seemed fraught with peril and the method of choosing presidents was highly problematic.

The framers favored some democracy, but were leery of too much of it. In their system, there would be four power centers in the new national government: the House, the Senate, the president and the Supreme Court. Only one of those (the House) would be subject to direct election (and even then, largely limited to white, male property owners). All of the other big federal jobs would be filled by means of indirect democracy. In the case of the presidency, they came up with the Electoral College (which, by the way, is never called a “college” in the Constitution. And it’s not a college. But the weird usage has become common over the years.)

There were no national political parties in 1787-89, no national media, no tradition of candidates traipsing around the then-much-smaller country, sharing their vision and begging for votes. Gentlemen like George Washington would have deemed it highly improper to say or do anything, at least publicly, to advance their own election. (Presidential candidates didn’t start actively campaigning for the job until roughly the William Jennings Bryan candidacy of 1896.)

Even if they had considered holding a national election in the 1780s, the residents of the states knew little about potential presidents from other states, they had little means of learning about them, and they weren’t organized into national political parties that would guide their choice. They could have arranged for the president to be chosen by the Congress, but the framers were interested in checks and balances across branches.

After Washington, who?

Everyone knew that the first president, no matter what method of appointment or election was used, would be Gen. George Washington, the almost universally admired hero of the revolution and the presiding officer over the Constitutional Convention itself. But, in this era before national parties and national media, would there ever again be men so well known and trusted in all 13 (going on 50) states? The framers had no way of knowing.

So they came up with a crazy-sounding plan. In each state, the Legislature would appoint a group of “electors,” using whatever method they liked. There was certainly no requirement that the matter be put to a vote of the population.

The only job of the electors was to elect a president. They would meet, separately in each state, and vote for two men (one of whom must be from a state different from their own) who they thought would make a good president.

If anyone was named on a majority of ballots, he would become president, and the runner-up would become vice president. If, after the inevitable end of the George Washington era, no one was named on a majority of ballots, the names of the top five finishers would be forwarded to the House of Representatives, which would choose from among them on – this is fairly unbelievable to modern ears – a one-state, one-vote basis. So the smallest state had as much say as the biggest. That, by the way, is still in the Constitution. If the election is thrown into the House, the single House member from Wyoming, Cynthia Lummis (until Jan. 3, when she will be replaced by Liz Cheney — yes, that Liz Cheney) — would have a voice equal to the combined 53 House members from California.

Still, if the “Hamilton Electors” succeed in pulling Trump below 270 electoral votes, the choice of a president will be thrown into the House.

Back in the 1780s, the state societies were so dominant, compared to the national whole, that the framers felt they had to force the electors to give at least one of their two votes to someone from another state. Later, when the 12th Amendment was adopted to clarify that electors should vote for one person for president and a second person for vice president, the system still forbade any elector to vote for two men from their own state.

In fact, in the first two presidential elections, while every elector included Washington in his list of two, the second vote was scattered among 11 men, which underscores that this was occurring in a time when there were no party tickets.

On the second round, in 1792, the electors (132 of them) all voted for a second Washington term, but their second votes were scattered among four recipients. The party system was starting to emerge, which led to the 12th Amendment system of partisan ticket voting.

That was the last major constitutional change in the system, but the amendment did nothing to specify that electors were required to vote for their party’s ticket nor that they had to vote for the ticket that carried the popular vote in their state.

The Constitution still says nothing that requires electors to do anything other than vote for a candidate for president and another for vice president, nor is there any federal law that binds electors to the outcome of the popular vote in their home states. If it was that automatic, why would you even need electors?

(In fact, if you can stand one last bit of ancient U.S. political history which I find amazing whenever I remember it, many states didn’t hold popular votes at all for president in the early years, nor were they, nor are they, constitutionally required to do so now. The states gradually got on the let-the-voters-vote bandwagon, but New York and Georgia, both them among the original 13 states, didn’t hold a popular vote for president until 1828. Even more amazing, South Carolina, also an original state, never held a presidential popular vote until 1868, the 21st presidential election. It’s unimaginable that any state now would do away with the presidential popular vote, but it would be constitutional.)

Over the years, the modern system took hold. Specifically the electors were appointed by their parties and were expected (or, in many cases, bound by state law) to vote for their party’s ticket if their party carried the plurality of votes in their state.

Constitution never amended on this point

Still, the Constitution was not amended to make this a requirement, which sets things up for Suprun, Lessig, Tribe and the Hamiltonians to make their argument that the Constitution still means what it meant when it was written and created the position of presidential “elector.”

If that’s the case, we’ll have to see how many electors are interested in following Suprun’s example.

If that number is big enough to pull Donald Trump below the magic 270 electoral vote number, and assuming that these Republican electors have not all switched their votes to Hillary Clinton, then the election would be thrown into the House of Representatives. That hasn’t happened since 1824 (and the House in that case, chose John Quincy Adams, the runner-up in both the popular and electoral vote).

I’ve run on too long and should stop. These scenarios seem so unlikely. But there’s one last detail you need to know to think through this crazy possibility of the faithless electors pulling Trump below 270 electoral votes.

If it happens that the choice of the president is thrown into the House, and members of the House would have to vote for one of the top three finishers in the electoral vote. Three. It’s in the Constitution and, of course, unless we get a 269-269 tie, at least three candidates must get at least one vote, and the House members would have to choose from one of the three. How do we get from two to three?

First of all, the electors are not constitutionally limited to voting for either nominee nor for anyone who ran for president. If you take the Hamiltonian argument seriously, they can vote for any natural-born citizen who they think would be a good president.

Of course, if there were enough faithless electors to deny Trump 270 electoral votes, and all of them switched to Clinton, she would be elected (perhaps after the blood in the streets part and assuming the Constitution means what it says).

But the reporting on the Lessig movement suggests that that’s not the way things are heading.

Any native-born citizen over 35

The electors are not constitutionally required to vote for either major party nominee. They can vote for any native-born citizen age 35 or older. If enough “faithless electors” unite behind someone else to prevent any candidate from reaching 270 — even if that third candidate got only a few electoral votes – then all three names would be forwarded to the House as possible presidents.

Who might such a third candidate be? The public speculation has mentioned Gov. John Kasich of Ohio, a moderate who might even attract support from some Democrats, if it were clear that Hillary Clinton couldn’t be elected.

If it were to get to the point where three names are forwarded from the Electoral College to the U.S. House, it would act on a one-state, one-vote basis.

When someone gets the vote of 26 House delegations, that’s your new president. If they keep trying, but can’t reach a conclusion by inauguration Day, the vice president is sworn in as acting president. (Under this scenario, the choice of the vice president was thrown into the Senate and is less likely to reach deadlock, since only the top two finishers for veep are forwarded to the Senate.)

Most states have Republican majorities in their House delegations. But House members from both parties get to vote. If things reached this unlikely scenario, would the Republicans members of the House stick together and decide to elect Trump  — who is, after all, their party’s nominee and who carried almost all states with majority Republican House delegations? They would have the option of doing that, and it seems quite likely to me that, even if they could, they wouldn’t set aside their party’s nominating process.

But it’s possible to imagine deals being made between Democrats and anti-Trump Republicans to throw the state’s support to the third-place electoral vote finisher.

Or might some of them think about a candidate who cuts such a moderate figure that he or she could attract support from both parties, maybe even some Democrats, if they have given up on Clinton’s chances? I said above that John Kasich’s name has been mentioned. In his Times op-ed piece announcing his intention to go “faithless,” which I linked to at the top of this filibuster, Texas Elector Suprun wrote:

I believe electors should unify behind a Republican alternative, an honorable and qualified man or woman such as Gov. John Kasich of Ohio. I pray my fellow electors will do their job and join with me in discovering who that person should be.

Politico, which has been following the faithless elector story closely, reported on Monday that Kasich is under discussion as a recipient of support from those involved in this effort. On Tuesday it reported that Kasich asked electors to not vote for him.

By the way, the electors are scheduled to meet in their respective states and cast their ballots on Dec. 19.

Comments (38)

  1. Submitted by Robin Rainford on 12/07/2016 - 11:39 am.

    Thank you for answering this question

    I read every word. Twice. I’ve wondered about the history of this and can’t trust information from political parties.

  2. Submitted by Neal Rovick on 12/07/2016 - 01:18 pm.

    While this all very much fun “what-ifs”, Trump will become President. Even if Trump did not get sufficient elector votes, the House would quickly affirm his election. And despite the hiccups, Trump would still claim it as a overwhelming mandate. The quick fade of the never-Trump crowd shows the extent of the country-over-party philosophy–the proverbial mile wide and inch deep.

    • Submitted by John Appelen on 12/07/2016 - 05:09 pm.


      I don’t think Congress would be daring enough to do differently. And I am avoiding public places if they do… 🙂

  3. Submitted by Rob Sebo Lubke on 12/07/2016 - 05:52 pm.

    Great piece

    I really enjoyed this…the writing is spot on and really tells a good story…and a great synopsis of the law…well done, Sir.

  4. Submitted by Bill Kahn on 12/07/2016 - 08:34 pm.

    I think that any Supreme Court of the past, present and future would be fine with any of the faithless elector scenarios discussed. I guess the Supremes are going to be very busy for the next four years of Trump acting under his imaginary mandate for idiotic governing.

    However unlikely it is, should it happen and someone other than Trump became Commander in Chief, we might finally be ready to fix our democracy (I was a Larry Lessig supporter and still believe we need those reforms to go forward) after the dust settled.

    A Bernie Sanders win could never have precipitated the possibility of a constitutional crisis like this and a Trump loss could put us on a new and productive path.

    I have a scintilla of hope.

  5. Submitted by Ilya Gutman on 12/07/2016 - 09:15 pm.

    Be careful what you wish for

    Very interesting historical review… but let’s talk about logic. First, winning a popular vote in an EC elections is irrelevant and is not by any means an indication of who would have won the election had it been based on a popular vote. A person who wins the most games in a tennis match may lose it even if the difference in games won is significant (6-7; 6-0, 6-7 for those who are familiar with the tennis scoring system). Second, I’d like to know if those, who oppose EC and want presidential election to be decided by the popular vote, think it would be fair if elections will be practically decided by half a dozen states with the largest population and state like New Hampshire will become irrelevant.

    Now, those who push for electors to change their votes are playing with fire. Mr. Lessig wants Clinton to be elected but cannot provide any evidence that she is qualified; obviously, half the country thinks that she is not. Considering that Trump’s favorability rating is now at 50%, people like what he is doing. If he is not elected president, not only it may (and most likely will) cause huge disturbances in many places, it will ruin people’s faith into election, democracy, and fairness for many generations to come which will be much longer than four years of Trump’s presidency if he doesn’t perform (and if he does, it will mean that people made the right choice).

    • Submitted by RB Holbrook on 12/08/2016 - 09:24 am.


      “Second, I’d like to know if those, who oppose EC and want presidential election to be decided by the popular vote, think it would be fair if elections will be practically decided by half a dozen states with the largest population and state like New Hampshire will become irrelevant.” As a matter of fact, I would be fine with that. No states would be deciding elections. Elections would be decided by the people. If most of them happen to live in just a few states, it does not contradict the notion that the election result would be the will of the people.

      No, I’m not one to get all choked up about The States. They are remnants of a practice of colonial land grants that may have made sense when they were first done, but are increasingly irrelevant as we become more interconnected.

      • Submitted by Paul Brandon on 12/08/2016 - 05:14 pm.

        Well said

        The States have the Senate to maintain their status as political entities.
        As Lincoln said:
        “…. government of the people, by the people and for the people….”
        Nothing about cows, trees or dirt.

      • Submitted by Ilya Gutman on 12/08/2016 - 08:41 pm.

        Another question

        Mr. Holbrook, in general I agree with your position on states and it bothers me when speed limits on interstate highways and graduation tests are established by the states – it doesn’t make sense now… However, electing a president is a little bit different because voting has something to do with life knowledge and experience. Considering that many people on the east and west coasts living in the big cities have never seen a cow and that they can’t learn in colleges that there is a different point of view than their own (despite all calls for diversity), allowing them to decide for the entire country may be dangerous. Would you be OK with the 99% voting to take everything from the 1% and jail them for… whatever (the reason may always be found, as history shows)?

        • Submitted by RB Holbrook on 12/09/2016 - 09:10 am.

          Would I Be OK With What?

          “Would you be OK with the 99% voting to take everything from the 1% and jail them for… whatever (the reason may always be found, as history shows)?” An interesting question. Would I be okay with that specific result? No, I would not. Would I be okay with the process by which it happened? If it involved a democratic vote, and no ex post facto laws or bills of attainder, I would accept it as a legitimate, lawful result. No one says I have to like it.

          “Considering that many people on the east and west coasts living in the big cities have never seen a cow and that they can’t learn in colleges that there is a different point of view than their own (despite all calls for diversity), allowing them to decide for the entire country may be dangerous.” Why is that more dangerous than having the fate of the entire country decided by any favored group? The snooty academic in Amherst and the hipster who is moving out of Portland because it’s too trendy are as much a part of America as the dairy farmer in Browns Valley or the sheet metal worker in Indiana. Frankly, I see no reason for harping on the distinction and elevating one group over the other except to exacerbate the social, economic, and cultural differences inherent in a large, diverse nation.

          • Submitted by Ilya Gutman on 12/09/2016 - 07:28 pm.

            We can’t let this happen

            The tyranny of the majority is one of the things that the Founding Fathers were very afraid of and the Electoral College (or whatever term they were thinking of at that time) was the way to possibly prevent it. Taking everything from 1% and jailing them, too, would be the tyranny of the majority in the worst possible form and it shall not be allowed to happen. Remember that people voted to ban same sex marriage in California and many other states and the Supreme Court ignored those wishes of the majority. In general I am not a supporter of this way of doing things but if we come to the point when a group of people may be imprisoned or deprived of livelihood at the wimp of the majority, we should not take it.

            As for your second point, the difference between an academic and a hipster on one side and a farmer and a metal worker is that the former have no clue about real life and other people live. That is what I meant when I said that colleges do not provide a way to see the total picture and all the points of view even though they claim they try to do just that. On the other hand, EC allows people from all areas to have a say while popular vote may not. America is too large and to diverse for going by popular vote like they can do in Spain or Sweden.

            • Submitted by Paul Brandon on 12/11/2016 - 01:01 pm.

              To be historically accurate

              The Senate and the Electoral College were compromises to keep small (at that time mostly Southern) states in the Union. That was already an issue. Note that there was only 62 years between the adoption of the Constitution and the start of the Civil War. Many people were alive during both events.
              Virginia in particular was the home of many of the founders, and was afraid of being dominated by the more populous Northern states.
              As for academics and the real world, you clearly don’t know many academics. Many of us worked our way at least in part in jobs like farming and (in my case) metal working. We know much more about the real world than the sons and grandsons or rich men.

              • Submitted by Ilya Gutman on 12/11/2016 - 06:47 pm.


                You are correct – I do not know many academics (or hipsters, for that matter) personally. However, I read their opinions a lot and do see that they don’t understand many things (the nature of socialism is one of them). Of course, this is all generalization which doesn’t mean that all academics don’t know anything about real world and all metal workers do. The major problem is that many academics can’t even accept the possibility that they may be wrong in anything..

            • Submitted by Dennis Wagner on 12/14/2016 - 10:16 am.


              “Tyranny of the majority” has now turned into the tyranny of the minority over the majority! Remember “T” did not get the popular vote, i.e. the majority will be governed by the minority. Facts is facts.

    • Submitted by adam bantell on 12/10/2016 - 05:03 pm.

      Popular vote plays in

      You use a good tennis analogy. However, your math is faulty. Take CA and ID for example. You worry about large state bulldozing smaller states, but it’s the other way. A voter in ID gets a 3:2 vote for every voter in CA. CA is pushed aside by Idaho (I’m from CT and live in IA, btw. Those were just the first states I saw population breakdown verses number of electors and the math works nicely). Wyoming gets more vote than ID on a per person basis. There is something to be said for 1 person 1 vote. Particularly since each state is also represented in Congress… equal in the senate with 2 each and then population in the House.

      You mention NH becoming irrelevant. IA and NH are very relevant as all eyes are always on them because of primaries. It’s the states at the end no one cares about. Coming from CT i felt this often… particularly when my candidates of choice would drop out before I got to vote. I had my first Iowa caucus this year and that was… interesting to say the least.

      It’s funny that Trump was anti-electoral college up until he won. Even into November hew as saying it was antiquated. Clinton supporters didn’t care because a) they felt she’d win win it and b) she had the popular vote anyway. It’s ironic that all these people fearing Trump defeat were tweeting protest and use pitchforks (looking at Sheriff Clarke there)… and then Trump loses the biggest popular vote but wins EC and it’s “get over it”.

      This is also the first election since VRA was gutted. According to the Atlantic, only 69% of blacks voted in NC where polling locations were reduced compared to 2012. Milwaukee Sentinal reported HUNDREDS of mail in ballots had been thrown out in Milwaukee.. as of 10/15. WI changed the mail in rules and people unknowingly had votes thrown away. I’m still waiting to find out how many were ultimately thrown away.

      In AZ, MI, WI, and PA, more voters were purged from rolls than the number of votes Trump won. And since Trump is alleging voter fraud nationally, it’s ironic that states like MI refused to do recounts.

      Now if everyone got to vote and each vote counted 1:1 by representative I’d be fine. But there was too much funny business. Also… Comey coming out about Clinton, then saying, “oh nevermind” right before the election, but he said nothing about Trump’s ties to Russia which he knew. And now more is coming out.

      I don’t care what party it is… if a foreign govt took a hand in a victory I don’t want that candidate to win, whether it’s republican, democrat, greet, liberatarian… whoever.

      • Submitted by Ilya Gutman on 12/10/2016 - 08:50 pm.

        Founding fathers were wary of giving too much power to big states and therefore made representation in Senate equal regardless of the state’s size. This is what causes disproportional weight for smaller states in presidential election. In other words, it is by original design and there was a reason behind that: to make sure smaller states would join the Union. There is still a reason for that now – please read my post about the tyranny of the majority. But of course the main point is that both candidates agreed to play this particular game and complaining about the rules of the game after the game is not good sportsmanship. I also believe Trump still said that he doesn’t like EC, even after election.

        It is equally irrelevant to complain about who could and could not vote. Yes, some rules were changed, but they were changed openly before election so everyone knew about the change and could have adjusted accordingly. And purging voters who are ineligible to vote is a good thing, isn’t it? As for recount in Michigan, it is a waste of money and time and that is why they don’t want it. And so far as Russian influence is concerned, was any of the leaked e-mails “fake news?” It is also sad that Democrats did not ask for actions against Putin when he bombed hospitals and supported Assad but now all of a sudden he became a bad guy?

  6. Submitted by Joe Musich on 12/07/2016 - 09:24 pm.

    Great speculative piece …

    In the nation of sheep the Hamilton electors will not come to much as much as I believe they should have the responsibility to take action. The huge red blue states contribute to the “mandate” conception. If anything the media can do is dispose if that imagery. It is deceptive. Good point about the weight of a Liz Chaney vote relative to one state one vote. Somewhere permanently displayed should be a graphic of exactly wher votes came for whom in relativity to population. I am not sure how that look at the moment. But the popular vote needs to be graphically examinable.

  7. Submitted by Howard Miller on 12/07/2016 - 10:45 pm.

    classic Black

    fine article, sir. learned a bunch.

  8. Submitted by Jessica Cordova Kramer on 12/08/2016 - 08:52 am.

    Good explanation, not bold enough

    I enjoyed Eric’s piece, and thought the history and legal explanations were helpful and interesting.I take issue with the hand-wringing on efforts to investigate the election legally or politically for fear of “blood in the streets” or distraction though (The Atlantic article recently on electoral college efforts falls in this camp). They’re either ridiculous or cowardly. Here’s what I mean about each such claim:

    Claim 1) Efforts on the electoral college will distract from a Dem plan to resist Trump when he’s president. Ridiculous. The EC efforts are small groups of attorneys across the country (in full disclosure, I’ve been helping out with this efforts a bit). Rest assured, the DNC and others are figuring out the overall Trump resistance strategy and the EC efforts won’t slow this down or distract.

    Claim 2) Unseating Trump through constitutional means or recount will cause civil unrest. Ridiculous and cowardly. We already have civil unrest. A Trump presidency will exponentially worsen this. Ending slavery and civil rights caused civil unrest. C’mon people. We can’t NOT do the right thing because of fear of a white supremacist uprising. I trust our law enforcement, legislature and other systems to prevent civil war.

    Claim 3) Trump won, get over it / deal with it. Actually, whether or not he won is unclear on multiple fronts. So this claim is ridiculous, and probably cowardly. From potential hacking of electronic votes by Russia (Lindsey Graham and Dems are launching a probe – this is not conspiracy theory) to suppression of votes in swing states (i.e., Michigan) that would greatly impact the electoral vote, to constitutional claims to equal protection of voters in populated states (whose votes count materially less than voters in rural states), Trump’s “win” was in the media when press called the election for him without further inquiry, not actual at this stage.

    People like when things are decided. Well, we have a few real – not sore loser – reasons to have the Presidency in limbo for a few more months. Surely we can survive that. Let’s be rational and brave, America.

    • Submitted by Tom McLaughlin on 12/08/2016 - 03:31 pm.

      Faithless Electors is a good title

      It amazes me that those who were so adamantly opposed to any challenges before the election are now searching for any option possible to derail the clear election results. You want to talk about cowards Ms Kramer? My guess is that Mr. Suprun, the Faithless Elector, made no mention when he was chosen that he would be “voting his conscience” at that time. But now since he does not like the election outcome he feels compelled to share that he can’t keep his word that he would vote as his state voted.

      No American would ever agree to have a bunch of individuals they had no opportunity to vet would have free choice to vote for whoever they wanted in the election. That is ludicrous.

      I could take several paragraphs making a case that the popular vote was rigged for the democrats and Hillary in truth did not get that vote. I could take more paragraphs making an argument that she is exponentially more dangerous to America than Donald Trump.

      But I am a conservative so you will simply discount any argument as so many non thinking liberal do who vote in lock step with the progressive agenda. At least I admit I am a conservative and don’t hide behind a cloak of impartiality. You are outraged because thinking Americans have repudiated the destructive Democrat agenda and you will stop at nothing to reverse it.

      It IS over Ms. Kramer. You DID lose. And if your party had not blocked voting verification under the guise of fairness, and removal of the dead from roles you would have lost the popular vote as well.

      Mr. Trump is not the danger to our nation. Mrs. Clinton would have been. And thank God that she was at least partially exposed for the person she is.;

      • Submitted by RB Holbrook on 12/09/2016 - 11:38 am.

        The Long Arm of the False

        “And if your party had not blocked voting verification under the guise of fairness, and removal of the dead from roles you would have lost the popular vote as well.” Of course, there is absolutely no reason to believe that really happened. Except, of course, that Trump said it.

        Would you care to meet for pizza to discuss this further? I know a great place in Washington.

        • Submitted by Todd Adler on 12/09/2016 - 12:36 pm.

          Fake It Till You Make It

          RB wins the Internet Troll Award for the day. Thanks for the laugh! I’m just glad I wasn’t drinking anything at the time or I would be cleaning up a big mess instead of typing this.

      • Submitted by Germane Kratopie on 12/17/2016 - 01:13 am.


        The fact that you can consider Trump a Republican is just idiotic. I’m a staunch conservative, because I believe in the principles and values of what that (used to) mean. You people who mindlessly fall in line with the ‘party’ make me embarrassed to have dedicated my life thus far to the same cause. Trump makes a fool out of us everyday, but it’s more important to be against the liberals than it is to be for our country. It breaks my heart that we’re in this situation. We need a major fix, but Trump ain’t it. Any ‘Republican’ who thinks he is, is either incapable of free thought or just trying to line their own pockets. Or just a flat out communist, but I choose not to think that way as it would break me further. Either way, I say again, I’m embarrassed to be associated with gutless followers such as this gentlemen. I’m a man without a country I’m afraid.

  9. Submitted by Francis Lu on 12/08/2016 - 02:43 pm.

    Stop Trump to save our democracy and planet

    *Every President since Carter* has had either a blind trust or wealth in Treasury bills (Obama).
    *Every President since Nixon* has disclosed their tax returns.

    NY Times reported on front page 12/7 Trump will likely not divest.

    Wake up America! 1) Support the Sen. Ben Cardin (22 co-sponsors) and Rep. Katherine Clark blind trust resolutions in Congress which are consistent with Common Cause’s website letter signed by 13 other organizations and Mr. Eisen and Mr. Painter (Obama and Bush ethics lawyers). The GOP can stonewall these 2 resolutions for ethical and Constitutional limits (Emoluments Clause) on Trump’s conflicts of interest at great peril to their party and the country. 2) We must lobby 37 Trump-pledged Electors to at least not vote for Trump, but preferably Clinton to save the environment and planet; 21 states do not have laws binding Electors. Let the House decide by state delegations among the top 3 on Jan. 6; buy time to expose more of Trump’s conflicts of interest and incompetence such as ​the ​anti-EPA EPA director choice. Once Trump is in office, there will be no investigations or impeachment from the GOP Congress. This must be the #1 front page issue every day to save our democracy and our planet.

  10. Submitted by Donald Larsson on 12/08/2016 - 04:59 pm.

    States and Electors

    I suspect that if the electoral shoe were on the other foot, and Trump had won (even narrowly) the popular vote but lost the Electoral College, we’d hear rather different tunes sung by many who profess to value the wisdom of electoral traditions right now. Aside from that, it’s pretty clear that states and both parties have too much invested in the current structure to let go of it. Even the movement for the “compact” that would have electors pledge state-by-state to honor the popular vote is likely to die on the vine. However, arguments that a popular vote would cause small states to be overlooked by candidates seem questionable to me. If there is no Electoral College and the Presidential vote is simply decided by who gets the most votes nationally, it could have the result of lessening the importance of states as such. Even large urban areas are not monolithic in their populations and interests. Rural areas of states have more in common with other rural areas than with their urban centers. It would be likely that votes would have to be fought for precinct by precinct, and one might see a candidate one day working hard in, say, Staten Island, and the next day in Wyoming because the state boundaries as such would no longer matter. But there are, of course, other possible complications (not the least being the role of state parties). Fun to speculate, but until the Electoral College mismatches occur more frequently, nothing is likely to happen.

  11. Submitted by Ilya Gutman on 12/08/2016 - 08:42 pm.


    Ms. Kramer, where do we have civil unrest? And I don’t think your telling people to “Rest assured, the DNC and others are figuring out the overall Trump resistance strategy” will help considering that DNC also thought they had figured out the election strategy to win the election…

    Ms. Lu, is the planet more in danger from climate change or ISIS wanting to take it over and killing people any chance they have? I also wonder what should be a bigger secret: personal taxes or Wall Street speeches?

    • Submitted by Paul Brandon on 12/09/2016 - 09:33 am.


      ISIS kills far fewer people than automobile accidents; you are in more danger from your bath tub than from ISIS. And ISIS power has already by significantly degraded — they have essentially given up on establishing a state and have switched to promoting foreign terrorism.
      Climate change is less newsworthy (at least until lower Manhattan is permanently under water), but in the longer run it IS an existential thread. We have passed by point where it is reversible, and are heading towards the point where it can no longer be stopped.

    • Submitted by RB Holbrook on 12/09/2016 - 10:16 am.

      Personal taxes or Wall Street speeches?

      Why should there be any difference? Except that the personal taxes could show illegality/skating on thin legal ice, and the speeches could show inconsistent policy positions, they are exactly the same thing.

      • Submitted by Ilya Gutman on 12/09/2016 - 07:29 pm.

        Climate and taxes

        Mr. Brandon, one may have a lower chance of dying in a bath tub than at the hands of ISIS but he or she has even lower chance (in fact, zero chance) of dying because of the climate change (and no, dying in a tornado or hurricane has nothing to do with dying from climate change – people have always died that way). I just saw a video of which areas of the US will be flooded if water rises 3 feet in 2100. Well, 25% of the Netherlands is below sea level and Amsterdam is 12 feet below the sea level… and that has been this way forever. So don’t you think that America will be able to solve this problem? On the other hand, I read that they finally have a working fusion reactor which would solve our energy problems once and for all. Imagine if USPS panicked in 1980 that they would not be able to deliver all the mail with the population growth in 2010… which of course they don’t need to due to e-mail invention.

        Mr. Holbrook, taxes have always been considered one of the most private information a person may have… public speeches – not so much. So the difference is that one historically is always a closely guarded secret and the other one is generally supposed to be pubic.

        • Submitted by Paul Brandon on 12/10/2016 - 09:19 am.

          Ignoring the non sequiturs

          It has been said that fusion is the energy of the future, and always will be.
          So far, it has reached the stage where it is possible but not practical.

        • Submitted by Neal Rovick on 12/12/2016 - 08:21 am.

          Climate change is more than higher ocean levels.

          It is change in the yield of crops. It is changes in the zones where crops can be grown. It is heat in areas of the world where it will not be possible to be outside and survive. It is change in ocean chemistry. It is change in weather patterns.

          While higher waters may be solvable for some areas, about 40% of the worlds population live in sea-side cities. Massive population movements will be required. If you are worried about refugees now, consider that many of the countries where our current refugees come from are on the hot/dry end of the spectrum of climate–their countries will become largely uninhabitable or non-arable with respect to crops.

          And, the climate change will persist for 10’s of thousands of years.

          ISIS is a blip in time, climate change is not.

  12. Submitted by Ian Coburn on 12/08/2016 - 09:37 pm.

    So Many Poor Articles from Media Regarding

    This is another disappointing article regarding the electoral college because, like many others, it contains misinformation regarding the college. Journalists keep writing that the college was put in not to rubber stamp the popular vote. Ah, no. And it’s sad journalists keep misstating this because all they have to do is look at Article 2 of the Constitution. If you are writing about the Constitution, don’t you think it would be a good idea to actually read it first? Apparently not.

    In truth, there isn’t any such thing as popular vote for President in the Constitution. The Founding Fathers. realized 1 million+ people couldn’t reasonably deliberate for such a role, so instead each state voted for the actual delegates (the electoral college, a term never actually used in the Constitution) that would then decide the President. The public put their faith into these people (who in a number of states weren’t even voted for; they were appointed in some fashion) to choose the best person for the job of President.

    The delegates would be able to debate and discuss much better than a large public. The electoral college wasn’t put in as a system to not rubber stamp the popular vote; it was put in as THE system. And it has never been changed. In truth, many of our elections over the years, since corrupted by political parties, have been unconstitutional. This original system is part of being a Republic.

    It would be nice if an article regarding the college was actually accurate and fact-checked. And it was pretty easy for this article to do because the Texas faithless elector described it perfectly in his NY Times letter.

    • Submitted by Paul Brandon on 12/11/2016 - 01:08 pm.

      Another reason for the EC

      Travel took much longer then than it did after the introduction of rail travel. Since political votes were taken with all eligible voters in the same room, a popular vote was not practical. Because of this physical reality, the Framers developed a tiered system of representation where all eligible voters acted at the local level to choose representatives who in turn represented their interests at the next level. This is one reason why we are a Republic (recite the Pledge), not a Democracy.

  13. Submitted by Ian Coburn on 12/08/2016 - 09:44 pm.

    Well Done!

    It’s good to see an article that actually describes in detail how our election and the Constitution is actually supposed to function. Essentially, parties have corrupted the process over the year in their insatiable thirst for power, something our Fathers feared and knew would eventually happen, especially Washington.

    • Submitted by Paul Brandon on 12/09/2016 - 12:34 pm.

      A good point

      Contrast Washington’s rejection of personal power (he turned down an offer of President for Life — essentially becoming a monarch) with Trump’s active quest for personal power.

  14. Submitted by John Hayes on 12/13/2016 - 07:26 am.

    Electoral College Issues

    The interesting thing in all of this is that the Electoral College is the root cause of it. So it may be facilitating one of the very problems it was trying to avert!!!

    If the electoral college has never averted the problems it was created to solve and is now responsible for the current conundrum, the it is of no value and should go away.

    There is so much politics in all of this that the issues have become invisible. The electoral college IS THE PROBLEM and needs to be disbanded! But existence of the college and the way the delegate distribution works it will always favor conservatives who spread out, many of which do not live in major population areas.

    Right now we have a government under the control of the conservatives at all levels! Why is that? But to the point that government will never kill the goose that lays their golden egg.

    Yes, 37 defecting republican presidents COULD create a tie situation in terms of the delegate vote. throwing the decision to the house of representatives where some other republican will be appointed or where the will appoint Trump anyway.

    Can the delegates vote for some other person who was not in the race?

    The electoral college IS the problem!

  15. Submitted by Julie Stroeve on 12/14/2016 - 10:50 am.

    Constitional basis for Electoral College

    “As a historical matter of what the framers of the Constitution had in mind, he’s right, although that understanding of the role of electors went out of fashion long ago”

    that the understanding went out of fashion doesn’t mean that the Constitutional intent has changed. someone is ignoring the Constitution and I want this to stop! I’m with Lessig on this.

  16. Submitted by Dennis Wagner on 12/14/2016 - 06:55 pm.

    A twist?

    This was a very good piece with some very good comments. Here is a thought: Might Hamilton as well as others have had a, state of mind, relative to states similar to jolly old England, shires, and or lords and dukes estates. In order to make the transition to a different government, one typically needs to drag along remnants of the past, if nothing more than a template, a certain level of self rule required to accomplish the transition. However no plan to move on once the transition was completed, read constitution adopted. The Electoral College, could have been similar, if the populous makes a wrong decision there is a circuit breaker if, as the signers noted: “mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.” When it comes to states we get to a very sticky situations: California/New York, Wyoming/North Dakota perfect examples: final point about states and representation. The population of Calif is ~ 38.8M, New York 19.75M, Wyoming 584,153, North Dakota 739,482. Thus ND get s Senator for 369,741 people, Wyoming 292,091, California on the other hand 19.4M, New York 9.875. The math suggests that California is under represented in senators relative to North Dakota by ~ 52 Senators, and New York relative to Wyoming by about 33.8 senators. It appears the case can easily be made that the majority in America are suffering under the rule of the minority using the rule, (representatives plus Senators) for Electoral College delegates.

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