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 they only really exist to exercise their independent judgment. 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.
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.
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.
I am not at all sure that Trump should be their choice.
There are three excellent reasons for the Electoral College to choose Clinton:
But the biggest reason is:
3) The uproar from the Republicans and white supremacists eager for their loser to get all the powers of the Presidency would end the Electoral College.
Of course they shouldn’t choose him. Any downside that comes with it is infinitely preferable to what’s about to happen to our country.
I don’t easily dismiss the potential downside resulting from either choice.
Nope. We’re already over the falls and through the looking glass. Fascists are about to be given supreme state power with nothing in their way. Justin Amash is the only elected Republican even talking about Trump’s behavior which tells me they’re not going to do anything about it.
Without quibbling about any of that or its heart attack seriousness, you really should spend some time gaming out the other side of the equation.
Now I can’t get the image of Mad Max style up-armored Hoverounds out of my head. Thanks, Booman.
Just about the only thing that would make me question the decision of the electors to vote for Hillary Clinton is purely political gamesmanship of taking a loss now to take power later — especially because the chances of her being a one term president would be very high, and there’s a good chance Trump and his Republicans will be extremely vulnerable. But then I’m not even sure we will have an election by 2020 if he takes power, certainly not one that is fair. There might even be voting restrictions put in place that makes it impossible for us to win.
Although I am interested in how you game a worst and best case (or likely) for us. A friend of mine in DC has been lobbying electors quite heavily already since Nov 9.
Hillary Clinton would never accept the decision to give the election to her.
Yes, I think you’re right about that.
Its not really a serious argument. It’s not going to happen.
And it shouldn’t.
I have said this before: Trump is not the apocalypse, and most Americans do not regard him as such.
Define apocalypse, fladem. The country could very well go back to before 1932. That’s pretty damn apocalyptic.
Trump is a wildcard, and we really don’t know what we’re getting. If he’s just a buffoon and grifter, the republic will survive and we’ll eventually be able to clean up the mess he leaves. If he’s really a Secret Hitler and intends to use the FBI and Putin’s fake news and trolling squads to generate email “scandals” and Benghaziiii!s for Democratic Senatorial and Presidential candidates, we’re in deep you-know-what. Very scary dice to roll.
There’s another liberal academic who’s gone off his rocker, like Paul Krugman. And I used to admire Lawrence Lessig, since I am into free software.
Having the electors choose Hillary would amount to a coup, no better than the 2000 judicial coup. On top of that, Hillary wasn’t a legitimate nominee in the first place, since Bernie would have gotten the nomination if the DNC hadn’t stolen it from him.
It is as if Ivy League professors have a hard time accepting the will of the people when it goes against what they believe to be right.
Finally, doesn’t it matter to Lessig that Hillary conceded to Trump? When the opponent concedes, the election is over. That is how it works in America. What planet does Lessig live on?
The Electoral College choosing the President based on who they think is best qualified isn’t a coup; it’s exactly what the College was originally intended to do. If you go by the democratic outcome, Hillary should be President because she got more votes; if you go by the Founder’s intent Hillary should be President because Trump doesn’t belong in the job.
If what you are saying is true, then why did Hillary concede? And what is the point of having citizens vote for president in the first place? Or having a constitution and a system of laws, for that matter?
The electoral college was designed to give a higher weight to votes made in low-population states than to votes in high-population states. And that is why Trump won.
Why don’t we ask Alexander Hamilton what the Electoral College was designed to do?
Read the start of the 4th paragraph and ask if electors don’t switch now, when would they ever? I don’t like the electoral college, but if this is a significant reason why we have it, this seems to be the appropriate person for them to exercise independent judgement.
Setting aside the results of an election as they are commonly understood is at least similar to a coup, even if it is legal.
Would you make the same argument if Clinton had lost the popular vote, won the electoral college and the Republicans were arguing that Clinton should not be elected because of popular vote? And perhaps they would argue that the Founders never intended for a woman to become president?
If the situation were reversed, the Republicans would have argument #1, that the electoral college is not a democratically legitimate institution, but they would NOT have argument #2, that the electoral college was specifically designed to keep somebody like Trump out of the White House. It would be a very different argument.
exactly what boo said in the first place? And isn’t it simply, factually accurate?
You’d almost think Addledbrain didn’t read it, ‘r sumthin’.
You are just trying to stir trouble and erode confidence in the institutions of liberal democracy, which you hold in contempt. To challenge any one of your provocations merely invites more corrosive doubt in an irresistible and pointless descent to nihilism.
So, let’s talk about Vladimir Vladimirovich and the Patriarch of Moscow’s passion for expensive watches instead. OK?
The DNC stole nothing. They were not neutral – but they weren’t close to decisive.
I worked on the Sanders campaign. There were two big dates:
1. March 15 – Illinois, Ohio, North Carolina, Florida and Missouri.
Bernie got killed in Florida, lost NC and Ohio by good margins and lost the other two narrowly. That was kind of it really given what happened on Super Tuesday.
2. NY – Again Bernie lost by a good margin. Fair fight – Bernie outspent Clinton.
Those were fair fights.
We lost.
I really don’t have any patience for anyone who says it was stolen. We even outspent her in NY.
It’s just tin foil hat nonsense.
Not Iowa is another story…
Many ways to steal an election and many scales to put thumbs on.
Obama got killed in the FL, OH, MA, NJ, and NY ’08 primaries. Jan 29 (FL) and February 5 (the others). He also got killed in PA (4/22).
Feb 5, 2008 was more like a jungle primary, but it did provide a road-map for how best to order the ’16 primary schedule to maximize the benefit for HRC. Unlike the debate schedule, the primary/caucus schedule isn’t strictly controlled by the DNC, but the national party carries weight with the state parties that may or may not have the requisite power to change the primary schedule in accordance with a DNC preference.
Florida was not contested in 2008.
Obama carried most of the deep south. Clinton blew Sanders away there.
2008 was closer.
Clinton, Obama, and Edwards were on the ballot there. They’d agreed not to campaign there — iirc Clinton didn’t hold to her agreement.
Think like a ’16 DNC pre-primary planner. Of course Clinton carried the deep south; she had a lock on the AA vote that she would also have had in ’08 if not for abandoning her for Obama. If she had any credible ’16 challenger, she would lose a small portion of her ’08 white support, but that balance of that plus the AA vote would blow any challenger out of the water.
I don’t think the argument that they would have campaigned differently under different rules holds much water. Democracy is a right of the voters, not the campaigns, and holding how they might have voted against how they did vote is impossible – especially as there is not even a reasonable basis to speculate on the former.
That said, denying Trump the Presidency by EC fiat would be an absolute bloodbath. Almost 65 million people voted for this guy, many specifically because they thought drastic action was necessary against the elites taking their country. Now the elites are going to say you don’t get to choose your own leader after all? If a minuscule fraction, about one third of one percent, of Trump voters decide this is worth fighting over, that;s an army of close to a quarter million. Many are armed; in fact many have entire gun collections and so can arm the others. Can you effectively fight the US military on your own territory with small arms and homemade bombs? Yes, you can. Iraq just proved it. And that’s without divided loyalties within the military. Some will join the insurgents. Some will just refuse to shoot at Americans. No one, sometimes not the soldiers themselves, will know who until the battle is joined. This is a recipe for a failed state.
There is only one hope for overturning this election and it is a slim one: Jill Stein’s recount. If Clinton is shown to have actually won the three states, that is a much stronger argument than you voters are dumb, we’re going to override you. Many will still not accept it, and some may still take up arms. I don’t think we will be spared blood, but we have a good chance to be spared failed-state status.
Which finally means the EC has got to go. Hamilton did argue for it precisely so it could stop someone like Trump, it is true, but now that the situation has finally arisen, the EC as a practical matter cannot do this without destroying the country, so it cannot even fulfill its in extremis purpose. Meanwhile, the popular vote would stop Trump, just as it would have stopped Bush before.
I’ll lay this down here because it’s parenthetically related. Today Trump suggested widespread voter fraud – millions of fake votes – in an election that he is considered to have won. He says he really won the popular vote and that there are serious voter fraud problems in California, New Hampshire, and Virginia.
No one on the left seems to take seriously the possibility that the recounts will not go well for Trump, but he sure sounds like he does. He expects problems and is laying down his story now.
Maybe.
More likely he is just insane.
Shouldn’t the EC bolt from Trump and install Bernie?
The people* have, after all, spoken. At least those who understand things correctly have spoken.
*May not be true for all values of ‘the people’.
I am sure that Trump will be their choice.
I am not at all sure that Trump should be their choice.
That pretty much sums up the crazy place we find ourselves in. I don’t see a good answer either way. I don’t see a good outcome either way. This is going to be one for the history books no matter how it plays out.
Electoral College must reject Trump unless he sells his business, top lawyers for Bush and Obama…
Oh, wait, this changes everything. Right?
Well, it beats the argument that Trump will be too nutso as POTUS and therefore, must be stopped. Enough voters in the right states rejected the Trump as the more dangerous of the two. If they had known that Trump had no intention of putting his assets into a blind trust that therefore, couldn’t benefit from what could do in office, they might not have voted for him.
NBC — The Cost for Protecting Jet-Setting President-Elect Trump? Yuge!
I find these arguments repugnant because:
Thank you. Now, can we get this missive out to all the electors? I heartily endorse your sentiments re Chris Matthews. He has long irritated me and his pronouncements since November 8 literally anger me. He tops my list of those who are supposed to be one’s friends but are actually more damaging to one’s cause than are one’s nominal enemies.
far better in Wingnuttia than liberalism, which is nevertheless where he appallingly gets pigeonholed in many people’s minds. Or at least so they pretend.
Thank you Booman for stating so clearly what I think every time I read “but she won the popular vote!” Courting the EC vs. courting the general population are two different things, and other than landslide scenarios it’s not at all clear what a win/loss in one might mean to the other.
Thought experiment: Imagine the presidential election is based only on the a popular vote, and imagine that Hillary clearly won it. Would anyone in their right mind dream up anything as convoluted as the EC, and then claim Trump as the rightful leader because of it? Turning things around like this shows how fundamentally moronic the concept of our EC is.
Adding (is there an edit function here?) the obscuring of the popular vote by the EC mechanism is probably the strongest reason to get rid of the EC. I mean, what’s more of a mandate than the win of the popular vote? If the EC keeps us from knowing the will of the majority, then it is fundamentally undemocratic.
(meaning diaries can be edited by the author after you’ve posted them, even, I think, if there are comments already; comments are uneditable once posted)
The Trump administration will be a disaster. The Electoral College choosing someone else would be worse.
This situation should be a conclusive argument for eliminating the EC. In the 21st century, this country will explode if the EC ever does one thing the Founders intended it to do: prevent the election of an unsuitable candidate, even though that candidate otherwise won the election according to the rules in place. Yet, if the EC system repeatedly results in the popular vote winner losing, as it has done twice in 16 years, a slower, quieter, but ultimately no less dangerous constitutional crisis is inevitable.
Trump and Trumpism has to fail. But it must be defeated by electing opponents at every level of government over the next several years, even more than by non violent resistance to its policies. Trump will leave office, whenever that happens, and under whatever circumstances, as the most reviled and despised president we have ever had. The corruption and incompetence of the incoming administration, along with its policies, will convince many supporters that they have made a terrible mistake. But if the electors were to choose someone else, the myth of Trump, the story that elites had stabbed ‘real Americans’ in the back would metastasize.
The EC is an anachronism. It must be eliminated for the good of the country. But that’s a goal for the future. These are frightening and dangerous times. We cannot afford to have the EC making them immeasurably worse.
While I support your views, it’s not yet apparent in the wider world out there that those elements who will prosper from a Trump administration will ever be convinced of any damage he’s likely to do. Thus far, they, the business elite and the Republicans in Congress, are salivating over what’s next. The other day a former co-worker, whose judgment I used never to question, tried to get my to use the term “MY” President. She kept insisting. I refused. All the folks around me vote tribally, and they vote Republican. They are largely not WWC voters.
I’m afeared it will have to be something immediately awful or consistentently damaging for Trump to be viewed as the threat to our Democracy that he is. We are in for some rough times.
Finally, though, why is it that Democratic candidates have to do the sane thing for the country? Reverse what happened on November 8 and where do you think the GOP would be right now? Fully acquiescent? They’d already have rioted and rioted violently.
Plus have already filed suit to stop the EV on December 19 and mandated all sorts of recounts.
I feel like at this point we are in a foxhole and almost certain to die soon. I mean literally, not figuratively.
I would not want many of you in that foxhole. You would want to argue about the morality of killing someone else on an arbitrary distinction of the definition of nationalism or patriotism. The time for you to be a conscientious objector or advocate for a better system is long gone. You need to take orders and do your level best.
We are going to die and others are doomed. The best we can hope to do is hold off the other side until we figure out how to win long term.
A Trump Presidency could be an extinction event. The media, Quisling Republicans, and Vichy Democrats will allow Trump to normalize abhorrent precedents. The whole Rick Perry and Mitt Romney pony show is to enact revenge and ridicule them. The worst imaginable people will be Trump’s picks. Trying to envision anything else is whistling past the graveyard.
Utilizing the EC as it was actually envisioned is not cheating, gaming the system, or any other malarkey. It is using all the tools at our disposal. Dems are masters of disarming to Marquess of Queensberry rules that the other side never follows.
God if I see one more “respectable” liberal in the media or in my social media feed talk about how much they hope Romney is chosen at State only exemplifies why we fucking lost.
Gah, chunk of text got deleted in that post. Anyway, you know what I meant: fuck Mitt Romney and his liberal enablers.
I am glad others get that Trump and Bannon are rewriting the rules. Romney, Ryan, and McConnell are giving the media the illusion that this is just business as usual. It is anything but.
I may be be too apocalyptic in my interpretation of how this plays out, but at best it will be pretty awful on just the domestic front. Too many Senate Dems think there is a unicorn under all that excrement.
Not sure about that yet. Schumer doesn’t get it yet, although his comments on Medicare were good. I’m going to miss Harry Reid who understood the stakes, and I can say with absolute certainty that my 2009 self would be looking at me in disbelief for pining for Harry Reid…
I suspect a number of our 2009 selves would be looking in disbelief at what we’re want or advocating now. Thing is, it appears a few of us here see the stakes quite clearly. I’m hardly the only one here who saw the rise of Trump during the GOP primaries as a wakeup call.
that you don’t know what you got ’til it’s gone
[ya trash Harry Reid,
put up with Mitch McConnell]
(ooh, ooh sha sha)”
I am not advocating violence, that really got away from what I was trying to convey, my apologies. That was supposed to read in relation to a WWI foxhole setting. I was still working on it when I hit post by accident, it can be deleted, if anyone has the power.
I think trying to switch Electoral voters is a difficult decision to make, but that was what I was referring to overall. I don’t think the precedent is that strong in terms of the popular vote winner not matching the Electoral College winner, that going back to how the Electors originally envisioned their role is some sort of dirty pool.
I would also like to get rid of the Electoral College, but like many I am not sold on winner take all if no majority is reached. I would like a run-off between the top 2 vote getters in those situations.
I got that this was a metaphor. No worries. It’s an apt one. I suspect sane people will get that you are not advocating violence. Nor am I. But it is useful to realize that this is an actual battle, and it’s inevitable that we will lose much of our territory (in the form of economic and social progress) and have to fight very viciously to hang on to a few parcels of land.
Interesting metaphor. I would not have quite thought of it in those terms, but it seems quite fitting. We are at war, like it or not, and need to be on war footing. Instead, going back to our hypothetical foxhole, collectively the bulk of us would be so busy bickering and trying to come up with the most clever means to be condescending toward everyone else that none of us would bother to notice the live grenade that has just been lobbed into our foxhole. I look around at who might be potential allies, and that list is not an especially long one. A shame really. At a time when some semblance of unity would be a necessity, it appears to be “every one for her or himself.” My version of optimism these days is that there will still be something salvageable from the wreckage, and perhaps the survivors can begin the long and painful process of cleaning up and rebuilding.
The answer to the electoral college problem is the National Popular Vote Interstate Compact
The constitution says that the states get to decide how electors are allocated. The goal of this initiative is to change the rules so that the electors are allocated entirely to the winner of the national popular vote. The beauty of this approach is that it doesn’t require a constitutional amendment. The other smart thing about the compact is that it is worded so that doesn’t take effect until it’s passed by enough states to make the majority of the electors. Already it is been passed by states with 165 electoral votes.
Unfortunately, this is a relatively unknown initiative, and because Republicans understand that the archaic electoral college mechanism currently favors them (i.e. small rural states get disproportionate representation), they have been opposed. But this is the kind of common sense electoral reform initiative that would probably garner wide-spread support if Democrats spent a little time trying to sell it. And you would think after an electoral disaster like this year, they would realize that maybe something needs to be done…
Just a moment. How and when were the slates of electors chosen? Is there a single, pre-selected group of ciphers in each state who just automatically vote for the popular vote winner in each state? Or when we vote Clinton or Trump, did we actually vote for slates of electors? If the latter, is there any compelling reason to believe that GOP electors would abandon Trump in favor of Clinton? I think not.
What since 11/8 could possibly persuade any Trump-declared elector to reverse her/himself?
Every horrific thing he’s said/done since was clearly stated/presaged beforehand.
So EC reversal for good of country looks like a pipe dream.