How the Electoral College Can Save America

The incompetent Presidency of Barack Obama has critically damaged our country, but the havoc was supposed to end and recovery to begin in January 2017.  Now it seems that the ordeal will continue for at least another four years, since the probable Republican and Democrat nominees are both unfit to serve as our president.  The America we have known and seek to restore may not survive this additional adversity.

A majority of the delegates to the Republican convention could change the rules to let them nominate somebody other than Donald Trump, but they are unlikely to find the necessary fortitude.  The Electoral College (E.C.) will then be our last chance to elect somebody with the breadth of knowledge, the depth of understanding, and the fundamental integrity so obviously missing in both Trump and Clinton.

While working on the Constitution, James Madison expressed great concern about what he called (in Federalist #10 in 1787) "the mischiefs of faction," which he feared could destroy the Union.  He would regard the present rubber-stamp character of both the Republican and Democrat conventions (and, indeed, the structure of the parties themselves) as prime examples of this evil.  The solution he proposed was genuine representative democracy, in which the people would elect serious, thoughtful mediators who would filter out partisan follies.  The specific purpose of the E.C. was to protect the presidency if the passions of the moment led the people to vote for some populist charlatan or unprincipled demagogue.  We need it now, since the electorate is apparently willing to accept anybody, no matter how crass, who does not seem a Washington insider.

Each state appoints as many electors to the E.C. as the number of its congressional representatives and senators.  The 23rd Amendment gave three to the District of Columbia, so the total is 538.  In almost all states, the electors are nominally bound to whichever candidate won the popular vote in their state, but the clear constitutional intent is that they should vote in the E.C. for the person they think best qualified.  

The E.C. votes will be counted in a joint session of the new Congress on January 6, 2017.  If one candidate receives a majority (i.e., 270), he or she will become the president.  If not, the House of Representatives will immediately choose among the top three by a ballot with one vote per state, as required by the 12th Amendment to the Constitution.

Since it is probable that the House will remain under Republican control, electors from Democrat states are unlikely to vote for anybody but their party's nominee.  The first objective is thus to ensure that Clinton does not win in enough states to give her 270 votes in the E.C.  If she does, the game will be over, and we will just have to hunker down and try to survive four more years of Democrat mismanagement – and decades, perhaps, of unconstitutional partisan legislation from the SCOTUS bench.

The next objective must be to appoint some E.C. electors from Republican states who will refuse to vote for Trump.  If the general election is close, a few such electors may be enough to deny him the majority.

1. An Independent Candidate.

We have been told repeatedly that a third candidate would only increase the odds that Clinton will win the election.  While this is probably true in most states, there are a few strongly conservative ones where it is not.

A careful analysis is needed to decide which state races offer a good chance of defeating Trump without a serious risk of a Clinton win.  The results of the primaries, as reported by Real Clear Politics, suggest that the most promising states are Idaho, Utah, Kansas, and Texas, in all of which Cruz won the Republican vote.  Table 1 shows the percentages of the total vote (Republican plus Democrat) won by (1) Clinton and Sanders together, (2) Trump, (3) Cruz, and (4) Rubio and Kasich together.

Table 1: Vote Shares in the Primaries

  E.C. Votes Clinton + Sanders Trump Cruz Rubio + Kasich Margin
Idaho 4 9.9% 26.1% 42.2% 21.7% 14%
Utah 6 30.3% 9.8% 48.2% 11.7% 0%
Kansas 6 35.1% 15.3% 31.6% 18.0% 20%
Texas 38 35.0% 18.8% 30.8% 15.5% 27%

In order to provide a rough preliminary estimate of the probable results of three-way general-election contests in these states, it is assumed here that the turnout would be similar to that in the primaries, that Clinton would take all the Democrat votes, and that Trump and Cruz would split the votes that went to Rubio and Kasich.  The column entitled "Margin" gives the percentages of the people who voted for Rubio or Kasich in the primaries who would have to vote for Cruz in order for him to beat both Clinton and Trump.  While nothing is certain, all of these states seem like gambles worth taking for the sake of our future.

Among themselves, these four states contribute 54 electors to the E.C.  If all of them voted for the third candidate, Trump could not win if Clinton received more than 215 votes.

Given adequate financial resources, an independent candidate would not require any overt support from the GOP, although many party leaders who are dismayed by Trump might offer at least tacit encouragement.  Enough coordination is needed to ensure that only one credible independent is on the ballot in each selected competitive state, but it is not essential that it be the same individual in all of them.  While Senator Cruz's performance in the primaries suggests that he would be a good choice, defeating Trump requires a dispassionate assessment of his prospects in a 12th Amendment ballot in the House.  Other possibilities include Marco Rubio, Rick Perry (who might do well in Texas), or Condoleezza Rice (if she would accept the role), but not establishment figures such as Jeb Bush and Mitt Romney.

2. Uncommitted Electors

Very few E.C. electors have ever exercised any independent judgment in casting their votes, but this does not mean that they cannot or should not.  Some states have laws or party rules requiring conformity, but the theoretical penalties for disobedience are derisory (usually fines up to a few thousand dollars) compared to the cost and importance of presidential campaigns.  Most constitutional authorities agree that electors are free agents and that any attempt to penalize their decisions would fail in the courts.  In any case, 21 states make no attempt to control the votes of their electors.

If electors decided for themselves how to vote, they would of course face angry accusations that they were disenfranchising the electorate, but in fact they would be fulfilling their constitutional responsibilities. If such behavior is unprecedented, so is the rise of Donald Trump.  Unusual problems demand unusual remedies.

Electors from many states Trump wins may recognize that he is a very poor choice for president.  Moreover, some of the state committees that choose the electors might deliberately select individuals who are (openly or covertly) opposed to him.  Encouraging electors to vote as their consciences dictate is another way to help save the nation.

3. The Ballot in the House

In the 114th Congress, Republicans are a majority in the House delegations from 33 states, and it is probable but not certain that they will retain enough control in the 115th to determine who will become president.  Some House Republicans will be Trump loyalists, and some who do not understand their constitutional role as responsible representatives might believe, incorrectly, that they must vote for him if he wins the Republican popular vote.  Persuading the House to select a person who had received few votes in either the E.C. or the general election requires (1) a candidate who would obviously make a much better president than Trump or Clinton, (2) a strong campaign aimed at electing principled conservative Republicans to House seats rather than Trumpians, and (3) somebody who has or could develop good relations with newly elected and returning House members.

We can and we must make this happen.

Phil Chapman is a retired geophysicist and concerned Republican who lives in Scottsdale, Ariz.  He was once a NASA astronaut and is still involved in space-related research.

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