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Democrats Need To Win Elections, Not Flip Electors

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MIDTOWN MANHATTAN, NEW YORK, NY, UNITED STATES - 2016/12/12: Women and Allies, Nationwide Protest in New York City - On the 12th of December, women and allies in cities across the country unify to demonstrate collective power, and to deliver the message in a unified voice that women are ready to stand against any government action that would serve to erode the rights of women and other vulnerable groups. (Photo by Erik McGregor/Pacific Press/LightRocket via Getty Images)

MIDTOWN MANHATTAN, NEW YORK, NY, UNITED STATES – 2016/12/12: Women and Allies, Nationwide Protest in New York City – On the 12th of December, women and allies in cities across the country unify to demonstrate collective power, and to deliver the message in a unified voice that women are ready to stand against any government action that would serve to erode the rights of women and other vulnerable groups. (Photo by Erik McGregor/Pacific Press/LightRocket via Getty Images)

On Monday, 538 presidential electors will gather to name Donald Trump as president-elect and Mike Pence as vice-president elect. Or at least, we think they will. On Nov. 8, Trump and Pence provisionally won 306 electoral votes and Hillary Clinton and Tim Kaine won 232, based on the popular vote in each state.1 But those electoral votes are cast by people — the members of the Electoral College — and in many states, the electors have the right to buck the voters’ choice.

In 1988, for example, Margaret Leach, an elector from West Virginia, deliberately switched the positions of Michael Dukakis and Lloyd Bentsen on her ballot in what she said was a protest against the Electoral College (Dukakis and Bentsen had won West Virginia, which is something that Democrats used to do once upon a time). Thus, the national electoral vote tally for the 1988 election was 426 electoral votes for George H.W. Bush, 111 for Dukakis, and one for Bentsen.

So-called “faithless electors” like Leach have been rare, and have never flipped the Electoral College outcome. There was one faithless elector each year in 1948, 1956, 1960, 1968, 1972, 1976, 1988, 2000 and 2004. The only mass defection of electors from the top of the ticket2 came in 1872 when 63 electors originally pledged to Horace Greeley chose not to back him. That’s because Greeley, who was jointly the nominee of the Democratic and Liberal Republican parties, had died after the election but before the Electoral College met.

This year, there’s been a movement afoot to encourage electors to vote for someone other than Trump in an effort to deny him the presidency. If at least 37 Trump-pledged electors were to do this, it would deny any candidate a majority3 and the election would be determined by the House of Representatives, which would choose from among the top three finishers. For example, if 30 Trump electors defected to Pence and another 10 defected to Ohio Governor John Kasich, the House would choose among Trump (266 electoral votes), Clinton (232) and Pence (30).

You can get into quite an abyss by reading the various cases that Democrats are making for electors behaving faithlessly, which turn on some combination of Clinton’s substantial win in the national popular vote, potential Russian interference into the election, and Trump’s conflicts-of-interest and possible violation of the Constitution’s Emoluments Clause to claim that the election outcome was illegitimate.

At the risk of engaging in a hit-and-run argument, I wanted to go on record to say that I think this is a bad idea. My reasons are best encapsulated in this tweetstorm by the political scientist Matt Glassman, who notes that there is a strong precedent toward electors abiding by the vote in their states. Other than a few one-off cases like Leach, the historical norm has been that electors stick with the voters’ choice unless the candidate died, as in the case of Greeley or the losing vice presidential candidate James S. Sherman in 1912. Furthermore, as Glassman notes, it’s not at all clear what the upside for Democrats would be. This year, narrowly denying Trump a majority in the Electoral College would still probably result in Trump’s election via the Republican-controlled House of Representatives, producing the same president but with a Constitutional crisis along the way. And in the long run, encouraging electors to deviate from the outcomes in their states would result in the House more often deciding presidential elections, which is probably not in Democrats’ interests given how their voters are clustered — and gerrymandered — into urban congressional districts.

Besides, the Constitution provides for other remedies to deal with a president whom voters perceive to be illegitimate or unfit. He can be impeached. Lesser knew: In the event of a physical or mental disability, he can be temporarily relieved of duty under the 25th Amendment. He can, of course, be voted out of office after four years.

And in the meantime, voters can check the president’s power by electing members of Congress to oppose him, or by pressuring the current Congress to do so. It’s somewhat vexing to me that Democrats have focused so much energy on long-shot hopes of overturning the 2016 results instead of looking forward to — you know — actually winning the next set of elections. Those two pursuits aren’t mutually exclusive, but the latter is far more likely to pay dividends than the former.

The 2018 midterms will come around quickly, and they’ll offer Democrats an opportunity to flip the House by winning a net of 24 seats, a not-insurmountable number even given that there are fewer competitive districts than there used to be. (The Senate might be harder to flip, because so many of the seats in play are already held by Democrats.) Most voters went to the polls last month expecting Clinton to win, which may have affected how they filled out the rest of their ballots — some voters may have backed Republicans for Congress and for state and local offices in an effort to put a check on Clinton in the White House. This situation is fairly unusual — normally voters do a pretty good job of predicting who the president will be — and it potentially creates opportunities for Democrats to win support from voters who will now be doubly eager to counterbalance Trump, even beyond the midterm backlash that a new president usually faces.

Read in full on Five Thirty Eight: Democrats Need To Win Elections, Not Flip Electors

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