Stop Trying to Convince Trump Electors Not to Vote for Trump; It Will Do Nothing But Set a Horrible Precedent

By
Greg Diamond
– December 10, 2016Posted in: "The OC", Fresh Juice

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Could that warm embrace at (and of) the far right belie future plotting to block Trump from the Presidency?

A group of people calling themselves “Hamilton Electors” (named after the musical bio star subject and author of The Federalist #68, which explains the basis for and role of the Electoral College) got together after the election and started agitating for Trump’s Presidential Electors not to vote for him, but to instead vote for Hillary Clinton.  Simply writing that down explicitly illuminates how stupid that is — “Trump Electors” are chosen by the Republican Parties within the various states with the express purpose of voting for Trump — and asking them to support Hillary is madness.  (Eventually, the Hamilton Electors seem to have figured this last part out, and most have given up on trying to elect Hillary and are instead focusing on trying to elect “sane Republican” John Kasich.  He’d be a better President than Trump — but that’s not going to happen.  Electors could no longer obtain life insurance after doing so.)

The basis for this idea is that the Constitution allows Electors to vote for whomever they please, although this has happened extremely rarely.  I don’t think that I can improve on Wikipedia for the history report:

On 22 occasions, 179 electors have not cast their votes for President or Vice President as prescribed by the legislature of the state they represented. Of those, 71 electors changed their votes because the candidate to whom they were pledged died before the electoral ballot (1872, 1912). Two electors chose to abstain from voting for any candidate (1812, 2000).  The remaining 106 were changed by the elector’s personal interest, or perhaps by accident. Usually, the faithless electors act alone. An exception was the 1836 election, in which all 23 Virginia electors acted together.

The 1836 election was the only occasion when faithless electors altered the outcome of the electoral college vote. The Democratic ticket won states with 170 of the 294 electoral votes, but the 23 Virginia electors abstained in the vote for Vice President, so the Democratic nominee, Richard M. Johnson, got only 147 (exactly half), and was not elected. However, Johnson was elected Vice President by the U.S. Senate.

Faithlessness of Electors has never come close to determining the outcome of a Presidential race.  If all Democrats voted for Kasich — which won’t happen, because of a similar life insurability problem — and 38 Republicans did so as well, then Kasich would indeed be elected.  But if instead 38 Republicans voted for Kasich and no or only some Democratic votes changed, then the election would go to the House of Representatives, with the House members choosing from among Trump, Clinton, and Kasich.

Well, actually that’s not quite true, because there’s a fourth candidate who could win in such circumstances: Mike Pence.  If the House could not reach an agreement on who would become President, then Pence (who would probably himself have received a majority of the Electoral Votes) would become President, and would nominate a new Vice-President to be confirmed by the Senate.  My guess is that this is more likely than either Clinton or Kasich winning via such a process.  (The Senate could also vote for Tim Kaine — it won’t — or for no one, in which event Speaker of the House Paul Ryan would ascend to the Presidency.  Even this is more likely than Hillary Clinton winning.)

To clarify, the election “going to the House” does not mean a vote of all 435 members of the House.  Instead, it’s a vote of State Delegations in the new 115th Congress (which will have taken office on January 3) — where Wyoming’s at-large representative Liz Cheney — yes, LIZ CHENEY — will have as much say as the majority of California’s 53 Representatives (who break 34-19 Democratic) and more say than Maine, whose delegation (if they vote along party lines) will be deadlocked and unable to cast a vote.  As Republicans control 32 of the state delegations to the Democrats’ 17, it’s a foregone conclusion that they would choose a Republican.

As for this argument, there’s an argument that the 20th Amendment could justify Congress refusing to recognize the Electoral Votes — Russian interference in the election process has been cited as a possible basis for this, although if it is the equivalent of an “independent expenditure” then I don’t see how that could possibly work — but I haven’t analyzed it.  A 1995 Supreme Court decision not to overturn a federal judge’s removal of a State Senate candidate over alleged voter fraud is being bandied about as a decision that would suffice.  It does not look like a particularly good precedent — but the notion that the President-Elect could be ousted because of what some third party did without his or her knowledge seems fundamentally unjust.  It might lead in the future to BOTH sides ensuring that some illegal activities took place ostensibly to elect the other side, with said activities providing a plausible (or at least plausible enough) fig leaf for Congress to derail the election of someone that it dislikes.  We don’t need that.

That people are even *talking* about either means of overturning an Presidential Election result scares the bejeebers out of me as a Democrat, because Republicans are MUCH more likely to use this power in the future than are Democrats — and we’d never again be able to rest easy in the two months following the election of a Democratic President. In short, I think that our violating this taboo as a means to elect Clinton has already set a very bad precedent — and even doing so to elect Kasich would set a bad precedent (though not as bad) that could be used for future Republicans to turn a Bernie Sanders-type victory into one where they could form a coalition with conservative Democrats to elect someone like Joe Lieberman who would work closely with them.  It is a horrific violation of political norms — and I wish that it had never happened.  But we’ve already crossed that bridge.
Well, if that won’t work, then how could the country rid itself of Trump?  THAT would be a lot easier, although all of the solutions involve at best jumping from the fire back into the frying pan.  (And maybe the reverse.)
Some have argued that Trump will be impeached and removed from office. This seems plausible, especially given that so many party-insider Republicans would prefer to see Pence than Trump as President. But the quicker and safer route would probably be for Republicans to remove him from office using the 25th Amendment, on the grounds that he is, in effect, nuts, feeble, or otherwise unable to discharge his duties.  Who can do this?  The VP and the Cabinet.
Here’s how our Constitution provides for a coup-by-Cabinet via Amendment 25, Sections 3 and 4:

“Section 3. Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

“Section 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

“Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

This procedure, by the way, is a mess.  Even if it were a bolt-from-the-blue taking the President by surprise, before he could say “you’re fired,” the President could presumably fire those members of his Cabinet who voted to remove him during the four days following his declaration that “no, I am not unable to resume office.” That is, he could do so IF HE IMMEDIATELY RETAKES OFFICE during those four days. Arguably, he wouldn’t retake office immediately, because the VP and Cabinet ARE supposed to have those four days — but the text doesn’t explicitly SAY that.

Any attempt to remove an unwilling Trump — and, who knows, he may be willing to resign in exchange for a blanket pardon from Pence — would lead to a constitutional crisis.  But the Supreme Court would arguably not agree to settle a crisis that posed a “political question” — meaning that they would leave it to Congress to settle the matter.  At that point, Congress — which would have to have a 2/3 majority in both houses for this to work in the first place — could probably quickly impeach and remove him for the good of the country.  It’s not like they wouldn’t have grounds.

There’s more to be said — such as discussing rioting by Trump supporters if this were actually to be tried, and perhaps assassinations of Members of Congress and the Cabinet during this period — but I’ll leave that alone for now.  The only good thing about a 25th Amendment solution, from a Democratic perspective, is that it would likely leave the Republican rather than the Democratic party in tatters.

Of course, that’s what we thought would happen given Trump’s campaign … and it didn’t.  And at any rate, we’re in bad enough shape as it is from the attempt to “steal the election” — and that’s what we’d be doing, even if it’s technically permitted, because it’s the Electoral College rather than the popular vote that determines the Presidency and we’d be screaming ourselves bloody if the situation were reversed — that has already been established as a precedent to be cited by those who in the future may also try to find away around “the will of the people,” as strained through the crooked pathway of the Constitution’s rules.

And the joke of it is: we’d likely be doing all of this simply in order to replace Trump with Pence.  No thanks.

About Greg Diamond

Somewhat verbose attorney, semi-disabled and semi-retired, residing in northwest Brea. Occasionally ran for office against jerks who otherwise would have gonr unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.) His daughter is a professional campaign treasurer. He doesn't usually know whom she and her firm represent. Whether they do so never influences his endorsements or coverage. (He does have his own strong opinions.) But when he does check campaign finance forms, he is often happily surprised to learn that good candidates he respects often DO hire her firm. (Maybe bad ones are scared off by his relationship with her, but they needn't be.)