Texas Election Law Blog

Monday the next POTUS will be elected

As the nation rumbles at a low boil, I’ve tried to summarize my thoughts about how, as 2016 draws to a close, voters seem to be more aware of (and more alarmed by and anxious about) our weird Electoral College. I mean weird as compared to the systems of other democracies across the planet. 

In those other countries that choose their chief executive officers through a voting process, the highest offices are awarded via popular vote, but in the United States, the two chief executive offices are chosen by the votes cast by state-constituted panels of electors.

These panels are constituted and organized based on the result of statewide popular elections that take place on the first Tuesday after the first Monday in November, and in Texas, as in 47 of the other states, those panels are organized on a principle of “winner take all” based on whoever won a strict plurality of the state popular vote. The panels then meet and cast their ballots on the first Monday after the second Wednesday in December, which is the actual Presidential Election.

High levels of concern

This year, more than in 2000, 2004, 2008, or 2012, advocacy for dramatic reform in the constitutional process of Presidential elections has been loud and persistent.

The public level of concern regarding the Electoral College and the outcome of Monday’s vote has no direct historical parallel. The closest analogous election might be the 1876 presidential election, which in its divisiveness had raised concerns of a second Civil War (about that, see my historical note at the end of this post).

This previously unheard of public discourse—about “Hamiltonian electors” stepping up to exercise independent judgment and discretion to deny the office of presidency to an unfit candidate—is happening right now in a way different from the last 224 years of post-Twelfth Amendment Presidential contests because:

(1) There is a gap between the national popular vote, which favors Hillary Clinton by more than 2 percentage points, and the apportionment of electoral votes, which favors Donald Trump by a projected total of 306 electoral votes to Clinton’s 232.

(2) This is only the fifth time in more than 200 years in which the Electoral College vote has not reflected the popular vote. (The previous four occurrences were in 1824, 1876, 1888, and 2000.)

(3) Trump is perceived by some conservative and most progressive voters to be unfit to serve (particularly as the Russia stories continue to pile up); and

(4) The anger of at least half the voters regarding (among other things) Mr. Trump’s nonexistent electoral mandate arguably exceeds in intensity and furor the amount of public scorn heaped on the winners of the 1824, 1876, 1888, and 2000 Presidencies—which I am shorthanding as “lame duckling Presidencies”—ugly duckling meets lame duck.

Save us, Electors, you’re our only hope!

Our Electoral College system has broken before, but arguably never so badly as it has this year. So now we have public pleas and hopeful invocations addressed to the members of the Electoral College to fix what many are calling our national mistake.

Many are asking the “Hamiltonian electors” to (in effect) mirror (or honor) the national popular vote. (The previous link is to the National Popular Vote initiative, a multistate legislative initiative to enact state laws that would enforce the selection and votes cast by state electors to conform to the national vote.)

To mirror the popular vote this Monday, 37 of the total 306 Republican electors would have to break their oaths to cast their ballots in favor of the candidates who won their state. The breach of tradition would be unprecedented.

Texas electors get a fair amount of attention on Monday because our state has a large population and a correspondingly large number of electors (38) out of the total of 538 electors. (The seeming correspondence between the number of Texas electors—38—and the margin of Mr. Trump’s expected Electoral College victory—37—is purely coincidental; each state’s electoral votes are calculated by counting up the number of Congressional delegates assigned to that state. Texas, with 36 members of the House of Representatives and two members of the Senate, gets 38 electors.)

If the electors in Texas were to vote proportionately in line with the popular vote in this state, 20 of the 38 votes would be for Trump (i.e., 52.23% of 38, rounded up), 16 would be for Hillary Clinton (43.24% of 38, rounded down), 1 would be for Gary Weld (3.16% of 38, rounded down) and the remainder (1 vote) would be for Jill Stein (.8% of 38, rounded up).

So … is that what’s going to happen?

Uh. No. There is simply too much institutional, cultural, and, perhaps, other pressure on the electors to conform to prior tradition.

While electors are typically invisible political party functionaries and fundraisers who never enter the public sphere, two of the Texas electors are in the national public spotlight. One has resigned because of a moral objection to casting his ballot for Trump, and the other has indicated that he will not vote for Trump on Monday.

So I predict that on Monday when the results are announced, the Texas electors will have maybe one dissenting ballot, and the dissenter (a Republican Party loyalist who was chosen for his position as an elector by the Trump campaign team when the campaign office filled out its paperwork for the election late last year) will almost certainly not cast his ballot for Hillary Clinton.

Why are people so angry about all this?

So … let’s go back to our lame duckling President, put in office through a circumstance where the Electoral College vote doesn’t match the popular vote. In this context, which I will term for convenience a “broken election,” the President is installed by the Electoral College, but the disparity between the popular vote and the Electoral College outcome frustrates the will of those whose preferred candidate won the popular vote.

The reason why this election presents such a risk and challenge to our nation is different from (and worse than) than our previous “broken” elections for at least two reasons — the Russian interference (more on that here and here — but also, for balance, see The Nation‘s critique, here) and the growing evidence that the President-elect is so profoundly unsuited to hold office. 

Compare Donald Trump to the four other winners of the Electoral College who were also losers of the popular vote :

1. George W. Bush — At the time of his Electoral College victory in 2000, Bush was the elected governor of Texas; while he was admittedly a policy lightweight, he had, by his duties of office, engaged in the basic functions of government oversight, such as legislative review, public speaking, policy analysis, staff management, and constituent services.
2. Benjamin Harrison — At the time of his Electoral College victory in 1888, Harrison had represented the State of Ohio in the United States Senate for roughly one full term; while he had previously made unsuccessful runs for state office in Ohio, he was familiar with parliamentary procedure, bill drafting and analysis, the budget process, public speaking, staff management, and constituent services.
3. Rutherford B. Hayes — Before he became President in 1876, Hayes was the elected governor of Ohio; while he (like George W. Bush) was a policy lightweight, he had proven himself to be a popular state executive officer with prior experience in government operations.
4. John Quincy Adams — At the time of his election in 1824, Adams was the Secretary of State; while he had not previously been elected to an executive office, he had a lifetime of international diplomatic and government service under his belt, was supremely well-educated, and was a noted jurist, writer, and public speaker.

Neither Bush, nor Harrison, nor Hayes, nor Adams were as ensnared by financial conflicts of interest as Trump is, nor (arguably) were any of them as inexperienced and disinterested as Trump appears to be in essential principles of foreign policy, domestic administration, and actual governance — not to mention political checks and balances and other basic concepts of American constitutional law.

So there are broken Presidential elections, and then there is 2016. That’s why people are so upset; in his recent editorial in the Atlantic, James Fallows eloquently explains the foundations of despair.

What about the prospects of an electoral college revolt?

I have mentioned in a previous post that Professor Lawrence Lessig has published an idealistic constitutional argument as to why the members of the Electoral College should not cast their ballots for Donald Trump.

In advocating this course of action, Professor Lessig finds himself in the swelling ranks of a number of legal experts and public service professionals who similarly see the 2016 election as the most serious political crisis of our lifetime, and who additionally see a repudiation of Trump in the Electoral College vote as the only way we can save ourselves from disaster.

But people who suggest this revolt face a steep uphill climb, and not just because of tradition. An “exciting” December 19th Presidential Election creates two problems:

(1) Challenges to the Electoral College erode public faith in the process of the smooth and non-violent transition of power from one government to another. The Electoral College may be a stupid and weird procedural step, prone to this kind of brokenness, but it’s what we expect and are used to.

(2) The challenge to the expected Electoral College outcome is almost instantly reframed by supporters of Donald Trump as a petulant bad-faith refusal on the part of Clinton supporters to play the game by the rules as written. 

What the most hard-core Trump supporters need to acknowledge is that a broken election has subtle but important negative consequences for the winner of that election.

By failing to address the valid concerns of voters who favored the candidate who won the popular vote, the winning candidate makes the country more ungovernable.

All the winners of the previous “broken” Presidential elections faced this problem. Neither George W. Bush, nor Benjamin Harrison, nor Rutherford Hayes, nor John Q. Adams had as free a hand with the management of their administration as they would have if they hadn’t been elected with a metaphorical asterisk next to their names, and they had to accommodate this political reality. They all had to reach across the aisle.

And these historical loser-winners of the Presidential prize at least had some capacity (based on their own education, experience or sociopolitical awareness) to achieve this accommodation of their political reality.

In contrast, and heightening our fears for the future, Donald Trump seems emotionally and temperamentally unfit for the office, and we are worried (and I’m including myself in that “we”) that he cannot or does not know how to win—and more importantly, how to govern—with grace and a spirit of compromise.

Realistically, is Donald Trump going to get his 270 electoral votes on Monday? Yeah. I think so.

Whether or not he does, though, the only way we all get out of this intact is if he accepts the idea of a more blended power-sharing government than the one he erroneously believes and says that he has a mandate for.

HISTORICAL FOOTNOTE

Let’s consider the candidates and issues involved in those four previous broken presidential elections, and see how those elections compare to 2016.

1. THE FOUR WAY SCRAPE OF 1824

In the only election determined in the House of Representatives following a failure by any candidate to receive a majority Electoral College vote, John Quincy Adams was elected over his nearest rival (and the winner of the national popular vote), Andrew Jackson.

The election marked the dissolution of the riven and internally fractured single-party system that had existed roughly since the War of 1812, and signaled the reemergence of a two-party system that would win Jackson the presidency in 1828.

There were four strong regional candidates for President, all running on the same party ticket, and all of whom won at least two states. With such a diffuse and fractured election, it wasn’t surprising that none of the candidates won a simple majority of the popular vote or the needed 131 electoral votes; Jackson came closest with 41.4% (and 99 electoral votes), Adams had 30.9% (and 84 electoral votes), Clay had 13% (and 37 electoral votes) and Crawford had 11.2% (and 41 electoral votes). By the terms of the Twelfth Amendment, Jackson, Adams, and Crawford, as the top three electoral vote winners, would be elected by the House of Representatives, with each state delegation getting one vote.

Voters who favored Jackson were not happy that their chosen candidate was “robbed” of office by the House of Representatives; Henry Clay, as Speaker of the House, threw his legislative support to Adams in return for a cabinet position; this “corrupt bargain” gave fuel to Jackson’s supporters to engage in four years of running political warfare with the Adams administration.

In contrast to 2016, all four of the candidates running for President in 1824 possessed reasonably strong political pedigrees, education, and experience for public office.

Adams was Secretary of State, and as the son of President John Adams, he had spent his formative years in overseas diplomatic postings, spoke multiple European languages fluently, negotiated the Treaty of Ghent, was an accomplished scholar and writer, and a witty, thoughtful and erudite expert on international law and relations.

Jackson was a U.S. Senator, the former military governor of Florida, and a nationally famous military strategist and hero following the Battle of New Orleans.

Crawford was the Secretary of the Treasury, former Secretary of War, former U.S. Senator and President Pro Tempore, and former state legislator with a lifetime of public service and legal experience.

Henry Clay was the Speaker of the House, having had a long career and influential career in Congress and previously in state government as a powerful and skilled orator and legislative expert.

As hard as these candidates fought with each other, and as bitter as the 1824 election may have been, none of these four potential Commanders-in-Chief had political or personal baggage that could be compared to Trump’s “negatives.”

To the extent that the election in February 1825 in the House of Representatives was constitutionally fraught, it was because Clay bargained for a cabinet position because he hated Jackson, not because the integrity of the election process was tainted by foreign interference.

2. THE SHAME OF 1876

In the shadow of the Civil War, violence against black voters and rampant corruption in the Ulysses Grant administration came the 1876 contest between Samuel J. Tilden and Rutherford B. Hayes, the most serious post-Civil War constitutional crisis the United States has ever experienced, and one which came dangerously close to reigniting open warfare and rebellion over the unsatisfied grievances of defeated Southern pro-slavery sympathizers.

This was an election so fraught with connivance and error that all we know for sure is that Tilden won the popular vote, probably as the consequence of intense and violent suppression of the black vote in Mississippi, Louisiana, South Carolina, and Florida; of the electoral votes, 20 remain intractably indeterminate (partly because executive control of the state electoral colleges was disputed in a number of states and two sets of electoral returns were submitted by the governments of Oregon, Louisiana, South Carolina, and Florida).

In January of 1877, Congress passed a law creating a bipartisan Electoral Commission to award the missing electoral votes. Armed conflict seemed likely, and military defenses were strengthened around Washington D.C.; ultimately, Hayes was granted the 20 missing electoral votes in return for a compromise where Congress ended military oversight and removed federal troops from former Confederate states.

Hayes as governor of Ohio was the less well-known candidate, and was widely regarded as having a fairly thin resume of government experience. Nevertheless, he had served with distinction in the U.S. Army during the Civil War and was a popular executive officer in his home state.

Tilden, as governor of New York, was much more well known nationally as a “good government” reformer, and as the prosecutor who had cleaned out the corruption in Tammany Hall.

But as weak (in terms of public perception or media attention) as Hayes may have been compared to Tilden, he was an elected public official with experience as a state executive officer, and hardly comparable to a failed real estate mogul without any prior knowledge or understanding of government.

3. THE DIRTY SQUEAKER OF 1888

In the 1888 election, the incumbent Grover Cleveland won 48.6% of the popular vote to Benjamin Harrison’s 47.8%. Harrison nevertheless won the Presidency by a combination of hard campaigning in key states and the help of a corrupt New York political machine. Cleveland in effect lost his home state and the advantage of incumbency by failing to counter Harrison’s machine.

While Harrison was not a particularly strong candidate (in terms of the qualifications of experience) in comparison to a sitting President, he was a member of the U.S. Senate with a long record of public service.

4. FLORIDA, 2000

In the 2000 election, Al Gore won 48.4% of the popular vote to George W. Bush’s 47.9%, but lost by a thin, hanging chad of electoral votes in large part because of a partisan U.S. Supreme Court decision to foreclose further review of the Florida electoral process in the face of an extremely close statewide vote tally.

Given the recentness of the 2000 broken election, and the untidiness and unseemly way in which the 2000 election was resolved, voters who are upset with the 2016 election are making frequent references to the 2000 election, seeking parallels and citing the election for its relevance to the question of constitutional reform of the presidential election process.

In one sense, 2000 wasn’t as messy as 1876; the 2ooo election involved a systemic failure of election procedures in just a couple of states, and there was no credible risk that the Civil War would be reignited. Though violence and intimidation were certainly present in Florida during the abortive recount process, the risk of a nation-wide military conflict was essentially nonexistent.

And in another sense, 2000 wasn’t as messy as 2016; while the winning candidate had a weak résumé in comparison to that of the incumbent Vice President, at the time of his election he held office as the elected chief executive officer of a populous state.