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Electoral College: Thoughts About the December 19 Presidential Election at the Texas Capitol

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.

Professor Lawrence Lessig & Team Offering Free Confidential Legal Advice For Presidential Electors

My wife asked about The Electors Trust, a group of lawyers offering “free and strictly confidential legal support to any Elector who wishes to vote their conscience,” and so at her suggestion, I’m posting the link for its relevance to the Texas electors.

And here’s Harvard law professor Lawrence Lessig’s article explaining how the Electors Trust works, and what his intentions are in offering this advice.

I’m still working through my own thoughts regarding the Electoral College, so-called “faithless electors,” and our oddly structured Presidential elections, and will take some time to unpack them in a (very near) future post.

What Just Happened?: Starting With Why Hillary Clinton Isn’t Going To Ask for a Recount or File An Election Contest

DOES THE #AUDITTHEVOTE MOVEMENT HAVE LEGS?

Three nights ago, my wife told me to check my Facebook page because she had “tagged me” (whatever that means*) with a story from New York magazine about a group of lawyers and computer scientists who have urged the Clinton campaign to file recount requests in Wisconsin, Michigan and Pennsylvania. (She also said something about a petition that as of this writing has close to 200,000 signatures.)

So I started to write about that story, but then one of the quoted security experts (Professor Alex Halderman) published a follow-up on Medium to provide context and to correct nuances of the story that he felt the magazine’s coverage had omitted.

(At the University of California, Berkeley, a separate unrelated group of security experts are also calling for a “risk-limiting” audit of the election for similar reasons and on similar grounds.)

Professor Halderman’s blog post describes the facts that have driven this group of respectable and well-regarded experts to urge a review of the election — these facts include

(1) Reports that Russian agents wanted to or tried to interfere with and subvert the mechanisms of democracy in collusion with the Trump campaign in key battleground states;

(2) Troubling statistical anomalies in voter turnout compared across jurisdictions within those battleground states;

(3) The experience of Ukrainian election officials, who in 2014 were caught off-guard by a multi-pronged attack on vote-reporting and online tabulation of their national election in 2014. (Some of the details of that 2014 attack were covered in this Wall Street Journal story.)

In August of this year, Ben Shapiro wrote a nice summary article for Politico about the security threats that endanger electronic voting generally, stretching back to the dramatic headline-grabbing criticisms directed at electronic voting system manufacturers made by Andrew Appel and Alex Halderman in 2003. The story also briefly touches on the capacities of foreign hackers to disrupt elections with non-physical attacks.

On Facebook and elsewhere, the New York magazine story is being circulated along with admonitions to readers to call or write the Department of Justice and urge the DOJ to audit the election. As the New York story points out, the deadlines for candidate recount requests (which are functionally distinct from and more modest than full-blown election contests filed in court, but which help frame the factual context and discovery process in advance of possible litigation) are almost over—today, November 25, is the deadline for a recount in Wisconsin; Monday, November 28, is the deadline in Pennsylvania; and Wednesday, November 30 is the deadline for a recount in Michigan.

On the topic of recounts, Green Party candidate Jill Stein might or might not use some of the money she’s raised to request recounts, although her request would not particularly help any other candidate, and seems like a quixotic cry for attention.

In his blog posts addressing the New York magazine story, Rick Hasen has said pretty much everything that needs to be said about this matter.

As to my analysis, recounts are not forensic examinations of the veracity of an election—they are merely re-tallies of the election returns to correct arithmetic errors. Realistically, if there is credible evidence of some actual and material election fraud, that evidence will only be adduced through a criminal investigation or an election contest, or both; not a recount.

Is Hillary Clinton going to file an election contest?

Eh … I would put the odds of such litigation as slim to none.

The problem for the Clinton campaign is twofold.

First, there is a matter of a lack of concrete evidence of material irregularity in the conduct of the election — beyond arguing that the statistical patterns of turnout and voting results looks fishy, one would need to articulate with some credibility how the election outcome was hacked. Without knowing more, I just don’t see any evidence of tabulation errors that might be collected through an election audit as being sufficient to support a contest of the results.

Second, the losing candidate is under pressure from her own party to accept the results in the interest of promoting a peaceful transition to the new administration.

ELECTION HACKING IN CONTEXT

Whether rigging an election in 1916 or in 2016, and independent of the technology used to record votes, the person or group doing the rigging always faces the same general tactical challenge: You can’t rig an election except by getting your hands on the ballots.

Voting machines are not networked, and you cannot access them remotely — as Professor Appel demonstrated when he broke into his guinea pig voting systems, an election-stealer actually has to get his or her hands dirty.

That being said, if you have actual possession of the equipment to be used in an election, you can presumably maliciously destroy the election to your heart’s content, limited only by your technical skill and the scope of your evil intentions.

But that’s always been true — technology alters the details of how the machinery might be subverted, but it doesn’t alter the scope of the broad security problem at hand.

Stunts like reprogramming voting machines to play Pac-Man, or theatrical subversions of the District of Columbia’s abandoned notions of Internet voting don’t frighten me to any greater degree than any other hypothetical or actual examples of election subversion, because even the most extravagant forms of election fraud are dependent on physical access to the machinery of voting.

Or rather, I suppose all examples of election rigging do frighten me, but always to the same extent, and independent of the specific details of any particular method of election theft that might be described, whether it involves paper ballots or electronically recorded votes.

In other words, I find election rigging involving ballot box-stuffing and paper forgery to be just as worrying as election rigging involving sleeper software, self-replicating trojan horse viruses, and reverse-engineered access keycards.

So rigging an election that uses direct-recording electronic voting systems is described in technical terms that are cooler and more sinister-sounding, but that are simply the electronic analogue of getting a guy to cut the bottom out of an old-fashioned galvanized metal ballot box.

So if someone came to me and said, “I think the November 2016 presidential election was rigged in key counties within at least three of the battleground states,” my first questions would include:

  • What kind of security measures preserved the voting equipment against unauthorized access in each of those counties?
  • What evidence have you found of a breach of those security measures?

The forensic challenge might well be complex, and the answer to my question might be a mix of direct and circumstantial evidence of ballot insecurity.

“Well, in X County, county maintenance workers reported that a padlock on the county’s equipment shed was cut sometime between October 30th and November 1st, but an inventory showed no theft occurred.”

Or

“In Y County at Precinct 301, election workers had decided to get a head start on things, so they dropped off their equipment at the Smith Elementary School on the evening of the 7th, and had the janitor lock the equipment in the basement boiler room, but they don’t know who else has a key to the boiler room.”

Or

“In Z County after the polls closed, the election workers couldn’t find any of the wire-hasp seals that were supposed to be in the election kit, so they just went ahead and closed up the equipment and loaded it on the county pick-up truck to take it back to the county courthouse. Since they hadn’t bothered to write anything down on their seal register or their ‘transfer of physical custody’ form, the county clerk yelled at them and made them feel bad, but what’s done is done. The clerk went out to Office Max the next day and bought a few serial-number embossed wire hasps, and put those on the equipment.”

Such bits of evidence are the kernels of a potential police investigation — each irregularity (whether trivial or serious) prompts follow-up questions.

  • Does the county have a surveillance system for its voting equipment shed?
  • What were the reported tallies?
  • Who voted in each precinct?
  • Should the district attorney file a motion to impound the equipment to preserve evidence?
  • How many of the voters, when called and interrogated, are willing to say who they voted for?
  • Does a judge need to issue subpoenas to solicit grand jury testimony from the voters listed on the poll list?

So is it theoretically possible that elements in the Russian government could try to steal an American election by hacking voting machines? Well, sure. I mean, if and to the extent that neither the Russian government nor any of its intelligence allies minds the retaliatory risk to their own voting apparatus. Tit for tat, and all that.

To me, the fraud inherent in this election is more likely to be explained not as the product of a specific foreignfunded computer security breach of individual electronic voting units, but rather as a kind of collective self-inflicted wound on the body politic. I’m not oblivious to the threat or the potential that I have underestimated the ease of the technical limitations to be overcome, and if it does turn out that the physical mechanisms of our election’s ballot collection was subverted by a network of Russian hackers, I will be just as surprised and outraged as anyone, but I’m not going to tie myself in knots of paranoid doubt and fear in the absence of evidence.

There are to my mind more pressing systemic problems in our democracy, such as intentional voter suppression, which Ari Berman has written about extensively.

And the disturbing spread and political uses of so-calledfake news” and outright propaganda in the months and weeks leading up to the election, combined with what Americans have apparently just realized is a dire need for education about how — in addition to “Snopes it” — to discern fake from fact.

Vote suppression and racial gerrymandering also constitutes a kind of political fraud, to be sure, but the preconditions for this kind of fraud are a heady and profound failure of civic education in the face of the resurgent tides of open racial discrimination that now threaten to sweep away the gains of the civil rights movement. Maybe one might throw in a little soupçon of politically naive and dangerously nihilistic political experimentation, and voila!

In any case, if this election was overtly stolen through manipulating the tabulation of ballots, the state (through criminal investigation and prosecution) can punish the theft. But practically speaking, the only person with legal standing to file a civil suit (i.e. an election contest) to repair the civic damage caused by that theft is the losing candidate — not the voters, whether through an “audit” or otherwise.

So, unhappy voters, petition the DOJ as you see fit, but in petitioning for an “audit” you are not formally initiating any sort of recognized investigative or restorative process to change the outcome of this election.

You can also demand some sort of revolt by the Electoral College as well, if you’d like, but you should know that with a few negligible exceptions, the electors from each state are chosen by the candidate who wins that state’s popular vote. In other words, the electors are friends and supporters of the candidate and are chosen specifically for their loyalty to the candidate who has identified them for that role.

______________________________

*I know that when I say, “I don’t understand Facebook,” it looks like I’m crotchety and dim, shaking my liver-spotted fist at the kids tearing across my yard on their fancy social-network mountain bikes. And well …, I probably am crotchety and dim with respect to popular social networking sites and technologies (although as I understand it, Facebook itself is now kind of the fuddy old “grandpa” portal in comparison to Instagram and Twitter).

But honestly, can even those of you who regularly and confidently use Facebook (I’m looking at my wife right now) say that in your heart you truly love Facebook’s often extravagantly non-intuitive interface and design? Really? Even when it breaks expectations and functions in a manner inconsistent with other routine communication structures? Well, okay then. I guess it’s just me.