A month after this piece was posted in February of this year, Lawrence Douglas, an Amherst law professor, published a slim, electrifying volume titled “Will He Go?”, which is essentially a much-expanded, meticulously researched essay on the same subject. While I take some pride the original post, reprinted below, Douglas’ book is a chilling reminder of the challenges we may well face in the wake of the 2020 election, and should be required reading for every voter.
As citizens of a nation of laws, founded on a written Constitution, we Americans tend to think that even our thorniest problems can be addressed by legislation, or answers to them found in the Constitution itself. We forget how much our governmental institutions rely, at bottom, on such relatively flimsy notions as civility, precedent, and tradition.
One of those traditions is that incumbent presidents, when defeated in a bid for re-election, go quietly. The most recent examples — Gerald Ford, Jimmy Carter, and George H.W. Bush – were paragons of civility when it came at last to giving up the office. It’s not the force of law, but rather ritualized acts of grace and civility that imbue every Inauguration Day with powerful meaning, make the peaceful transfer of presidential power from one individual to another not only our national norm, but taken for granted.
But 1993, when the last one-term president exited the stage, was a long time ago, and the qualities of grace and civility are today much less in evidence in our politics, and in our politicians. And this is in no small measure due to one man, Donald J. Trump, who has, not just during his presidency but throughout his adult life, made incivility his weapon of choice and gracelessness his emblem of success.
Given the slow-motion political suicide that Democrats seem bent on in this election year, it’s entirely possible that Trump will win this November. We already know what that will look and feel like; we’ve been through it before.
But what if, as many of us fervently hope, Trump is defeated in his bid for re-election? Having ignored or openly trampled most of the long traditions of his office, will he at long last honor this one, follow the graceful examples of other one-term presidents, and go quietly? There’s every reason to fear that he won’t.
Start with the fact that Trump’s presidency is the result not of the “will of the people” so often invoked by sanctimonious Republicans during the recent impeachment proceedings, but of the Electoral College, which negated the will of 66 million voters in favor of the 63 million who voted for Trump. This has nagged at him throughout his presidency, and one can easily imagine how he would have reacted had the situation been reversed, and he had won the popular vote but lost in the Electoral College to Hillary Clinton. He would have been screaming about how this antiquated, undemocratic, winner-take-all system of state-level electors had stolen the presidency from him and defeated the hallowed will of the people.
This time around, it seems likely that Trump will again lose the popular vote, and the only question is whether he can again thread the needle of the traditional “Blue Wall” states in the upper Midwest and garner the requisite 270 electoral votes that will enable him to cling to the presidency. If he can’t, we assume that will be the end of it, and of Trump’s presidency.
The problem is that the Electoral College is among the least-tested institutions in our representative democracy, and perhaps the most susceptible to political manipulation and legal challenge, tactics that are second nature to Trump and his apparatchiks. If he loses in 2020, how might he seek, within the bounds of law, to obstruct or overturn the results of the election? With most incumbent presidents, the question would be the stuff of fanciful political fiction, but with Trump, it’s worth thinking seriously about now, before we have to.
The first tactic that Trump might resort to if he failed to win 270 electoral votes would be to invite state electors to “vote their conscience” for him and ignore the laws in most states requiring that all of the state’s electoral votes go to the candidate who wins the majority of popular votes within that state. (The only exceptions to this “winner-take-all” approach are Maine and Nebraska, which sensibly allocate electoral votes in proportion with the congressional districts won by each candidate.) If enough of these so-called “faithless electors” could be induced to break ranks and vote for Trump, an election that seemed decided against him could be thrown into doubt, or reversed.
But wouldn’t the faithless electors’ votes for Trump be illegal, and ignored? Not necessarily. It’s fairly clear that the framers of the Constitution, elitist intellectuals that they were, didn’t trust the general rabble to select a president. Alexander Hamilton and James Madison, principal architects of the Electoral College, believed that the indirect mechanism of selecting electors who would then elect the president was necessary because those electors, as contrasted with the general populace, would have, in Hamilton’s words, “the information and discernment requisite to such complicated investigations.”
Over the years, some electors have had the temerity to take their role as seriously as the framers intended, and ignored their states’ popular mandates. In the 2016 election, there were seven such faithless electors, two of whom refused to vote for Trump though he had won the popular vote in their states, and five of whom balked at voting for Clinton though she had won in theirs. Ominously enough, whether these electors were constitutionally entitled to do so (most of them were fined in accordance with state law) is currently the subject of a petition that will be taken up by the Supreme Court in April and likely decided prior to the 2020 election.
Given the current Court majority’s fetishization of the framers’ “original intent,” it’s not out of the question that it could rule that electors can vote as they wish, in which case Trump will have an ace up his sleeve that no sitting president has had since the 1800s: a do-over of the general election in the Electoral College. While this would lay bare the inherently anti-democratic nature of the College and make its ultimate demise much more likely (which is in part the goal of the petitioners to the Court), that will be cold comfort this December if the demonstrated will of the people is negated by rogue electors.
Even if a Trumpian appeal to faithless electors fails to win him the necessary 270 electoral vote majority, it could result in neither major party candidate achieving that threshold, in which case our genius Constitution stipulates that the House of Representatives decides who shall be president, in what is called a “contingent election.” This has happened exactly once in our history, in the 1824 contest between John Quincy Adams and Andrew Jackson. Though Jackson won the majority of popular votes and a plurality of electoral votes, neither candidate won a majority of the electoral votes, and the House eventually chose Adams (who had not even won a plurality of the popular vote and was defeated by Jackson four years later).
At first blush, given the current Democratic majority in the House and its recent attempt to remove him from office, a contingent election decided by that body would seem to be the last thing Trump would want. But hold on. Under the Twelfth Amendment to the Constitution, which took effect in 1804 and lays out the rules for contingent elections, each state gets just one vote for the next president, and the candidate who receives a majority of the states’ votes, wins.
So in this tumultuous scenario, a Democratic majority in the House becomes irrelevant, and the question would be in how many states does one party command a majority of those states’ representatives? Currently the answer is that in 26 of the 50 states, Republican representatives to the House outnumber Democratic representatives, suggesting that, if Republicans retain at least their current House seats in the 2020 election and continue to exhibit their customary slavish fealty to Trump, he would eke out the 26 vote majority needed to win a contingent election.
Even failing all that, Trump might pursue one more gambit: a legal attack on the Electoral College itself. The constitutionality of the 1887 law that governs Electoral College voting has never been tested and is open to opportunistic dispute. Or Trump could assert that the election laws of key states are unconstitutional and their electoral slates void. This sort of legal filibuster could make the crisis of the 2000 election, in which Bush v. Gore went to the Supreme Court, seem like a walk in the park. Months could go by with Trump squatting in the White House, tweeting invective and claiming fraud.
How have we avoided these political nightmares ever since 1824? In part because of luck, in part because legislation curbing as least some of the persistent weirdness of the Electoral College was passed by Congress in the late 19th century.∗
But our long string of orderly presidential successions has mostly been due to the grace, civility, and patriotism of our one-term presidents, like Carter and Bush, who on a particular day in January stood up in front of the world and, in selfless gesture and elegant ceremony, quietly deferred to their successors. These were men at the height of power and responsibility, being graceful. It’s a wonderful thing. And it’s a shame that we must fear that, if Trump loses this November 3, a graceful exit will be the last thing on his mind.
∗The Electoral College is a creature of two documents. The first is the Constitution, which in Article II, Section 1, states that the president will be elected not by direct vote of the people, but by “electors” appointed by each State. The second, called the Electoral Count Act, is much less well known, and came into being because the mechanism so broadly outlined in the Constitution proved unreliable in practice.
In the election of 1876, Samuel Tilden, a Democrat, won the popular vote over Rutherford B. Hayes by a significant margin, sweeping all of the states that had been part of the Confederacy. However, in three of those states –Florida, Louisiana, and South Carolina – Republicans held the statehouses and effectively controlled the selection of electors for the Electoral College. They challenged the validity of the popular vote count in each of their states and submitted their own slate of electors in support of Hayes, effectively presenting the Congress with two alternative Electoral Colleges, one of which meant that Tilden would be President, and the other that Hayes would be. In the resulting political fistfight, which included the creation of a special Congressional commission, Hayes was ultimately declared the victor, earning him the lasting nickname, “His Fraudulency.”
The lack of Constitutional clarity around how Congress should deal with the dilemma of competing slates of electors led to the passage, in 1887, of the Electoral Count Act (ECA), which requires, among other things, that if more than one slate of electors is submitted to Congress by a given state, the House and the Senate must agree on which slate to count, and if they cannot, then the governor of the state decides. And just to add more froth to the imbroglio, if the state governor fails to select a slate, or submits more than one, then none of the electoral votes of that state are counted.
The ECA is on the books to this day, though it is poorly drafted and its constitutionality has never been tested in the courts. There’s always a first time.
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