Analysis by Reporting San Diego
Dec 14, 2016 (San Diego) There are rumors that electors are turning away from voting for Donald Trump. This is what is called a faithless elector, one that does not vote the way the state he or she lives in, voted during the general election. First, we need to explain what the college is. It was put in the Constitution as an indirect vote to the Presidency. None of us voted for President in November We voted for the elector that will presumably vote the way we did, but they are not mandated to do such. It is a mechanism that was put in the Constitution for two reasons:
The first is that the Founders did not trust the people entirely. They believed that the College could overturn an election if the individual elected were deemed not fit for office. It was made, some liberals argue, for precisely times such as these. President-elect Donald Trump is seen as a terrible choice, a bad choice. Therefore it is the duty of those electors to vote to get anybody else into the White House. In their minds, of course, this is Hillary Clinton. The Electoral College could conceivably vote at a lock of 269-269 throwing the election to the House. They could also vote for Secretary Clinton, giving her 270…or they could conceivably decide to vote for Garry Johnson or Jill Stein. The chances of anybody but Trump coming out of the vote with anything but 270 + Electoral Votes are anywhere from nil to none. So even thinking the college will do anything else is a fool’s errand.
The second reason the college was established is darker. It was part of the compromise between Federalists and state’s rights, most of them in southern states, who were concerned about the legal status of their slaves. The census counted those slaves as 3\5 of a person, to keep them away from any potential power. The College was also put in place, as part of that compromise to give southern states more weight during elections. This is a darker side of the college. It is one reason why it is archaic, but these days it has morphed into a way for ten states, at best, to control the fate of the country every four years. The rest of us have no say.
Most of the time all these minutiae does not matter. Most elections the electoral vote and the popular vote match. The winner gets both. We have seen this fail twice in our lifetimes. The first was George W Bush in 2000, who had an extremely narrow victory. Trump’s victory is not a landslide, (306 is nowhere close to that category), but Clinton’s popular vote will mean that Trump will have legitimacy issues from day one. If there are faithless electors, and by that, we mean more than the one or two who seem to protest almost every cycle. The last time the country saw twenty or more faithless electors was in 1836 when 23 electors abstained from voting for Richard M Johnson, the Vice Presidential candidate. He had relations with a slave woman, and it was an open affair. Remember what we said above about slavery? This threw it into the House, where Johnson was still elected.
So let us assume for a second that Larry Lessig has indeed rounded up 20 faithless electors. That would bring Trump’s victory down to 286, which will make his presidency even more problematic.Not to mention his claim that he had a landslide.
Even if Lessig rounds up 36 faithless electors, it still gives the election to Trump, by the exact number of 270. They would need 37 to flip it, and it would be historical at many levels.
So let us assume for a second they do it, and 37 electors switch to Clinton. What about her legitimacy? She will be seen by many voters, especially in the states that determine the elections every four years, as not legitimate. She would have no political capital, even though she won a popular victory of close to 3 million. It would also continue divided government. What this is proving is that perhaps the United States needs to get rid of the electoral college. The history is clear. When Presidents come to the White House with an electoral college victory, and a defeat in the popular vote, they suffer from a legitimacy crisis. Whether that is George W Bush in 2000, or Rutherford B Hayes in 1876. Trump, braggadocio or not, he will face the same issues in states that voted for Clinton and feel their votes did not really count.