Federalist 68, the Electoral College, and Faithless Electors

By Lambert Strether of Corrente.

Since at least early November, Clinton loyalists and other establishment figures have, with increasing intensity, urged that the Electoral College function, not as a rubber stamp[1], but as a deliberative body, in order that Donald Trump be prevented from assuming office, based on their interpretations of Federalist 68. I believe that a careful reading of Alexander Hamilton’s text will show that these interpretations are wrong, for reasons I am about to explain. (Caveat that I’m relying on my ability, as an informed voter, to read and understand Hamilton’s prose.[2] I’m not going to do legal research into the electoral college; my impression is that it’s a backwater in Constitutional law in any case.) After giving my reading, I’m going to evaluate the few — and remarkably similar! — articles from Clinton loyalists and their allies. I’ll conclude with a brief comment on a change to the constitutional order contemplated by the Clinton loyalists.

The Framers were, as Hamilton writes in Federalist 68, creating a “system.” When I think of designing and documenting a system, I think of the system’s goals, its requirements, its specification, and its implementation. For example, suppose I am about to construct, not a “popular systems of civil government” (Federalist 9), but a kitchen sink. An example of a goal: “A kitchen sink to wash the dishes.” An example of a requirement: “The sink shall not allow sewer gas to escape. ” An example of a specification: “The sink shall have a plumbing trap that creates a water seal.” An example of implementation: “The plumber shall install a trap, part no. XXXX …..” And if we think of the Federalist Papers as tech doc for our Constitutional system, we see that it conforms to that structure (except for the implementation part; that’s up to us!)

The overarching goal of Federalist 68 is to ensure an orderly transition of power after a Presidential election (or what today we would call “continuity of government”). Hamilton’s topic sentence, the first (paragraph one):

The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.

(As a sidebar, we should remember that the Framers were bootstrapping an entirely new system in a world otherwise ruled by monarchs and emperors, in which dynastic wars of succession were not uncommon and were greatly feared. So I think we may forgive them for any bugs we might find.)

Hamilton then lays out several requirements (he calls a requirement a “desiderata”) for the mode of appointment. Excerpting paragraphs two through six:

1. “…desirable that the sense of the people should operate…”

2. “…the immediate election should be made by men most capable of analyzing the qualities adapted to the station…”

3. “…desirable to afford as little opportunity as possible to tumult and disorder…”

4. “…every practicable obstacle should be opposed to cabal, intrigue, and corruption…”

5. “…the Executive should be independent for his continuance in office on all but the people themselves…”

With paragraph seven, Hamilton shifts to specification (“All these advantages will happily combine in the plan devised…”). I’m going to ignore implementation for now.

One thing to notice in Hamilton’s system that these desidarata (or requirements) are not rigid or mechanical; they are supple, and necessarily political. For example, suppose “the sense of the people” operates, but the “men most capable of analyzing the qualities adapted to the station” disagree. Suppose that the “men most capable” override the “people,” but “tumult and disorder” results. Should the men then not have acted as they did; and if their actions caused “tumult and disorder,” were they in fact (based on performance outcomes) “most capable”? What if the “men most capable” do turn out to be corrupt because “practicable obstacles” have failed? What if the Executive (however chosen) takes “office” through the workings of “cabal” or faction, and not the sense of the people? What if “tumult and disorder” were potentially on a Civil War scale? If so, would “appointing” an otherwise less than ideal candidate be preferable? As you can see, the combinations are virtually limitless, and Hamilton’s genius was not to prescribe outcomes, but to establish a field of play where opposing forces could come to resolution, and an orderly transition of power be achieved. Now let’s look at some of today’s talking points, and put them in the context of Hamilton’s requirements (or desiderata). Here it will become evident that I regard the Clintonian effort not only as quixotic — they need to shift 37 Republican electors to throw the “appointment” into the House — but as flawed at every level, including morally[3].

1. “…desirable that the sense of the people should operate…”. One Clinton loyalist talking point (for example) is that this requirement should be specified by making our votes count equally. First, the Federalist Papers certainly didn’t think so, or they wouldn’t have created either the electoral college or our Federal system of government — especially the Senate — as they did. Second, both campaigns knew the rules going in, and allocated their campaign resources on that basis. Arguing, at least after an election, that the electoral vote should match the popular vote reminds me of a football team arguing that they “really won” because they racked up the most yards, even though their opponent had the most points. That’s not how it works. Finally, when Clinton loyalists, having competed in a number of winner-take-all primaries, and having taken advantage of the entirely undemocratic superdelegate system, suddenly, after losing an election, start arguing that all votes should count equally, it looks remarkably like special pleading. This is important since it suggests the operation of a cabal and intrigue (#4) instead of principled advocacy.

2. “…the immediate election should be made by men most capable of analyzing the qualities adapted to the station…” Hamilton meets this requirement by arguing that a “a small number of persons will be most likely to possess the information and discernment requisite to such complicated investigations.” But discernment — absent simply selecting by class and cultural markers, or by partisan jerseys — is a slippery term. One might argue, based on performance, that no Acela rider has any discernment whatever. Or that a climate change denialist has no discernment. Or a “pro-choice” advocate. Perhaps, then, the test of discernment is simply that the “men” achieved the station in life that they did, and have the political power that they have. Cream rises.

3. “…desirable to afford as little opportunity as possible to tumult and disorder…” It strikes me as odd that a Clinton campaign that painted a vivid picture of the violence of Trump supporters[4] would simultaneously act as if violence was not likely if Trump supporters perceive, as they are likely to do in the event of a Clinton success, that their candidate was deprived of office through chicanery. Again, Hamilton isn’t writing a recipe for a perfect President; he’s providing a field of play where the game ends with an orderly transition of power. What would he think when the field dissolves into open violence?

4. “…every practicable obstacle should be opposed to cabal, intrigue, and corruption…”. Forget about intrigue — we’re talking about the Beltway — but let’s talk about “cabal.” Here is (part of) the definition of a “cabal” from my electronic OED:

cabal /kəˈbal/ noun & verb. l16. [ORIGIN: French cabale from medieval Latin cab(b)ala (Italian, Spanish cabala): see Kabbalah.]

A. noun….

2. A secret intrigue, a conspiracy; petty plotting. arch. e17. Burke Centres of cabal. W. Irving Cabals breaking out in the company.

3. A secret meeting (of intriguers). arch. m17. Marvell Is he in caball in his cabinett sett.

4. A political clique, a faction; spec. (C-) a committee of five ministers under Charles II whose surnames happened to begin with C, A, B, A, and L (Clifford, Arlington,
Buckingham, Ashley, and Lauderdale). m17. G. B. Shaw The radical cabal in the cabinet which pursues my family with rancorous class hatred.

It’s hard to see how the Trump campaign — at least in the context of the Electoral College — can be seen as a cabal. However, when a secret report from one intelligence agency is anonymously leaked, when the President — who can only have been briefed on the topic of that report all along, if the Presidential Daily Brief process is working as it should — asks for the report to be evaluated before the transition of power on January 20, and Senators from one party, campaign operatives from the Clinton faction of that party, and electors from that party demand that some (presumably sanitized) version of that secret report be briefed to electors before the Electoral College meets on December 19, it’s hard to see anything other than a cabal at work, especially given that not all the intelligence agencies agree with the secret report. In short form, Madison would be opposed to what the (still not moribund) Clinton campaign is doing, on systemic grounds. What happens in 2020 when different cabals pursue different ends with the same technique?[5]

5. “…the Executive should be independent for his continuance in office on all but the people themselves…” I’ll have more to say about the change in the Constitutional order that the Clinton loyalists are advocating below. However, given the sequence of events outlined about in desideratum #4, it’s clear that under Clinton rules, future Presidents would be subject to vetting based on secret reports from intelligence agencies. That’s hardly “continuance in office” based on “the people themselves.”

Having examined the actual text of Federalist 68, let’s now look at how it’s been distorted by the fun house mirror in Brooklyn. Take for example Clinton loyalist Dahlia Lithwick[6] on December 5. Lithwick is making the case for “faithless electors”; electors who vote for one candidate even though the voters in their state chose another.

We believe it is our constitutional duty to follow Alexander Hamilton’s intent for the Electoral College. He wrote in Federalist 68 that the Electoral College should protect the presidency [1] from one who is unfit, [2] one who is under foreign influence, and [3] one shows signs of becoming a dangerous demagogue. We do not believe that Mr. Trump passes these tests.

(Here a Republican elector gives the same tests in the order [1], [3], [2] on December 9. Looks like a meme, and I’ve seen it go by on the Twitter. It probably works because it’s a case of tricolon. Things that come in threes are always easier to remember.) There are several problems with this formulation.

To begin with, as we have seen, Hamilton’s goal was not to “protect the Presidency” (what a weird, fearful, post-9/11 formulation) but to create a system that ensured an orderly transfer of power. And his desiderata (requirements) for doing so don’t map to Lithwick’s formulation at all, and he has important desiderata (avoiding “tumult and disorder,” and “cabals”) that Lithwick simply erases. However, Hamilton does cover topics roughly aligned with Lithwick’s talking points, so let’s look at each in turn.

[1] One who is unfit. Here is what Hamilton wrote:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

Fair enough. I mean, obviously we don’t want a James Buchanan Andrew Johnson Warren Harding….but in what sense are the virtues and defects of Clinton and Trump commensurate in terms of “requisite qualifications”? The voters don’t seem to like either the billionaire promoter or the professional politician very much; by that test, they’re both qualified, or neither is. The only way to make candidates commensurate, it seems to me, is to look at the policies that both espouse, and the likelihood of their implementation. Peter Beinart does that, and comes down — unsurprisingly, since Beinart is a fully paid up citizen of HillaryLand — for Clinton, but isn’t he really simply relitigating the election? Didn’t the voters make that judgment already?

[2] One who is under foreign influence. Lithwick’s talking point dramatically misrepresents Hamilton’s views. Hamilton wrote:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one querter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

Here is what “creature” means in this context, once more from the OED:

creature /ˈkriːtʃə/ noun. See also critter. me. [ORIGIN: Old French & mod. French créature from late Latin creatura, formed as create verb: see -ure.]

4. A person who owes his or her fortune to, and remains subservient to, another; a puppet. l16. Ld Macaulay The corporations were filled with his creatures.

To claim Hamilton’s assent to their schemes, Lithwick (and Clinton loyalists generally, as well as those whom they have managed to persuade) must show not that Trump is “influenced” by a foreign power, but that he is their puppet, or in modern terms, their operative or agent; mere business dealings are not enough. Disagreeing with The Blob on realpolitik is not enough. Extraordinary claims demand extraordinary evidence. Where is it? (And if it is produced, can we trust it any more than we trusted aluminum tubes, white powders, and uranium yellowcake when Bush was gaslighting us on WMDs?)

[3] One shows signs of becoming a dangerous demagogue. Hamilton does not use the word “demogogue” in Federalist 68 (and presumably, had he meant to use it, he would have; when he entered King’s College in 1773, he had a classical education that would be extraordinay by today’s standards). Leaving aside the weasel word “dangerous” (as in “Dangerous Donald,” I suppose, one of the many ideas from Brooklyn that don’t seem so bright in the light of day), here is what Hamilton actually wrote, in the Federalist 68 passage that seems closest to what Lithwick claims he wrote:

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

First, “the little arts of popularity” aren’t at all the same as demagogery. Second, I’m having a hard time thinking of a politician in our day and age who lacks a talent for “low intrigue” and does not employ “the little arts of popularity.” Sanders, perhaps. Certainly neither Clinton nor Trump.

* * *

Finally, I said that I’d highlight a change in the Constitutional Order that would take place if the Clinton loyalists succeed in their goal. Here is article 101 of the Chilean Constitution under Pinochet:

The Armed Forces[,] dependent on the Ministry responsible for the National Defense[,] are constituted solely and exclusively by the Army, Navy and Air Force. [They] exist for the defense of the country and are essential for national security and guarantee the institutional order of the Republic.

The Clinton loyalists are doing what Pinochet did. They are making intelligence agencies the guarantors of “the institutional order of the Republic.” From now on, if they manage to set a precedent, every Presidential candidate will have to be vetted before the electoral college by intelligence agencies.. That is the system they will have set up. I don’t think Hamilton would think much of it.[7] And there’s a word for that. It starts with an “F.”

NOTES

[1] The Stein recount effort failed to shift any electoral votes from Trump to Clinton. Hence the electoral college totals of November 8 stand.

[2] Federalist 68 has a Flesch-Kincaid Grade Level of 16.1.

[3] See Ian Welsh: “This is where Nazi/Fascist/Hitler/Camps rhetoric leaves you. Nothing is off the table.”

[4] The Clinton campaign also pushed Jon Ralston’s “fake news” of the Nevada chair-throwing incident, and erased supporter Wendell Pierce’s assault on a Sanders supporter.

[5] Time presses, so I don’t have time for a discussion of rice bowls in the national security class. However, remember how Madison thought of corruption: Not as a quid pro quo, but as the use of public office for private ends. Every self-licking ice cream cone at the Pentagon or in Langley is corrupt, by that definition.

[6] I don’t mean to pick on Lithwick. If I had time, I’d do a full media critique and find Patient Zero for the talking points. Readers?

[7] March 9, 2017: Or maybe Hamilton would have thought it was a great idea!

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

84 comments

  1. Altandmain

    Let’s face it, right now the Democrats and Establishment Liberals don’t have a strategy.

    It is literally like a crybaby screaming because they didn’t get their favorite toy. They thought they were entitled to the President. The voters, particularly in the swing states, disagreed.

    As Ian Welsh notes, this would set a very dangerous precedent indeed if the electors overrode the results in favor of Clinton against Trump.

    Clinton lost because she was a terrible candidate. It’s time the Democrats take responsibility for stuffing down a candidate that people did not like.

    They should be focusing on the things that matter, like trying to win 2018 and 2020. Of course there are so many things the Democrats should be doing … like actually serving the people.

    1. KnotRP

      …you meant to say stuffing down TWO candidates that people did not like! (& meddling
      in the other party’s primary selection to shape the final choice, to her benefit and the
      nation’s detriment, does not reflect well on her either)

      Unfortunately, she seems to view the EC as if it were a Jury,
      beause she is prepetually in Lawyer mode (win by any means,
      depends on what “is” means), and she can never admit
      that the voters are the Jury because that would be admitting
      it is over….denial is strong with this one

    1. Jim Haygood

      Seconded.

      Where else are you gonna find an erudite analysis of Federalist 68?

      Extra points for “tricolon.” ;-)

  2. Ranger Rick

    As a pessimistic response we can point to Cato’s reply to Federalist 10, that:

    Whoever seriously considers the immense extent of territory comprehended within the limits of the United States, with the variety of its climates, productions, and commerce, the difference of extent, and number of inhabitants in all; the dissimilitude of interest, morals, and policies, in almost every one, will receive it as an intuitive truth, that a consolidated republican form of government therein, can never form a perfect union, establish justice, insure domestic tranquility, promote the general welfare, and secure the blessings of liberty to you and your posterity, for to these objects it must be directed: this unkindred legislature therefore, composed of interests opposite and dissimilar in their nature, will in its exercise, emphatically be, like a house divided against itself.

  3. Bullwinkle

    Yes, thank you for this writeup. I have come to think of the EC as a final vetting of the election process comparable to the traditional wedding ceremony where it is asked (or was asked) if anyone has any reason why couple should not be married. Also, I can’t think of another election where the losing candidate has clinged so tenaciously to the hope of overturning the election. It was five weeks ago today. Time to finish the chapter and turn the page.

  4. lockean

    Back in the early republic the electors were the only names on the ballots (that’s when there were written ballots at all). The elector was the local politician who campaigned on behalf of the national candidate (since national candidates couldn’t and didn’t campaign locally). The elector gave the speeches, shook the hands, made the promises, and doled out the free whiskey.

    Having the electors physically go and vote for the president was more democratic than having the legislature choose the president (as had been the case under the Articles of Confederation) and much much safer than relying on a distant authority counting paper ballots sent to them by stagecoach.

    In certain circumstances the electors would be expected to choose a candidate other than whomever they initially supported (stroke, riding accident, criminal conviction), but the electors had some authority to do that since they were the actual people who had been voted on. They were like a caucus or a constitutional convention. Nowadays many states don’t even list the names of the electors (I don’t remember how many do or don’t), no one knows or cares who the electors are, and the national candidates campaign directly anyway, so having the electors vote for someone other than whomever they were pledged to is just a coup d’etat, plain and simple.

    1. djrichard

      Well said; I’m sold. Don’t think we’re going to have a coup via electors at this point. But if it were to occur, and appeals to authority are needed to fight such a coup, it would be more effective to appeal to the public’s own historical authority (bestowed upon their electors) than to authority bestowed upon them through the scripture of Hamilton.

      If the public’s will be done, then there is no coup.

      1. herkie1

        If the publics will be done then Mrs. Clinton will be sworn in on January 20 right? Because her lead in the popular vote is not just a few thousand under 3 million more votes than Trump. It is just as easy for me to say that the electoral college is in itself a coup d’état, and it is on top of that an expensive and divisive relic.

        We also saw in 2000 (the last time the popular vote winner was defeated in the EC) that 50 sets of state laws regarding federal elections is utterly insufficient to guard the office of President against vote rigging and other shenanigans. I was a registered democrat in Leon County Florida back then but had to ask for an absentee ballot because I moved to NY too late to register there. I got my ballot the day AFTER the election when it was worthless, and I will never know who held up the delivery of that ballot, but had this happened to just .01/100th of the Gore voting public in Florida that year it accounts for his loss by a mere 5-600 votes out of all the millions cast. Because of the closeness of that vote it was incumbent upon the authorities to make absolutely certain that ever vote cast was counted, and state law provided for that, but it was violated by the GOP authorities in state government. Their supreme court ruled that the count must happen, and the GOP immediately appealed to the SCOTUS who by Antonin Sclerotics one vote put Bush in the White House, and thus the nation on a path to destruction of our civil liberties.

        There needs to be inviolable federal law that protects and overrides state law as to the selection of the president. We have some federal election law but clearly it is not enough. I am thinking one man one vote by secret ballot all voting on the same day, with a set standard for voter ID that is not an undue burden to voters, and rid the country of the electoral college once and for all. Urbanization is continuing and distorts the value of the vote depending on whether you live in a near empty congressional district or a city with five congressional districts. LA County has 18 congressional districts. The votes of the people there are worth about 75% of a vote in Wyoming, or the Dakotas. That is not a situation the founders had envisioned. Greater LA has over 19 million people compared to 3 million for the entire USA when we broke from the crown.

        Why are sparsely populated rural states so special? They do not want to be overwhelmed by the large urban counties/cities/states? Sounds like whining to me. I am just as upset that urban voters have less power in the voting booth. That though does not seem to count for much. The PEOPLE are supposed to be picking our leader, and the PEOPLE happen to live in cities and urban regions, they have unique problems and need unique solutions, and they cannot get them because their voice has had it’s volume turned down for centuries by this stupid construct that was INTENDED to keep wealthier white males the controlling population of the US.

        No matter. The nation is very close to the end of this experiment in “democracy.” I for one am leaving on a one way ticket to the southern hemisphere 10 days before Trump is installed by Mr. Putin and the deplorables.

        1. kjerry

          ” I for one am leaving on a one way ticket to the southern hemisphere 10 days before Trump is installed by Mr. Putin and the deplorables.”

          Glad to hear it, Please hurry.

  5. cocomaan

    Has the electoral college ever done what’s being proposed by the Clinton camp? I can’t figure out how to phrase my question to google and it’s unclear to me.

    To Trump supporters, (4), keeping a corrupt cabal out of the white house, was accomplished with grace. Trump supporters told me that they were voting for the lesser of two evils. Democrats do not believe that this view has any legitimacy, though. In fact, they’re ignoring the will of sixty million people who voted for Trump with a reckless exercise in legalese and old documents 99% of people have never read.

  6. Vatch

    [Hamilton] wrote in Federalist 68 that the Electoral College should protect the presidency [1] from one who is unfit, [2] one who is under foreign influence

    [1] We still don’t know much about Clinton’s health problems. That she went home most evenings (or all evenings) during the campaign implies that she either needed special medical treatments at home, or that she was afraid that hotel staff might learn something about her condition. So she is probably medically unfit (a bit like Woodrow Wilson in the final year of his presidency).
    [2] As a result of donations to the Clinton Foundation from Saudi Arabia and other foreign sources, she is definitely under foreign influence.

    1. Fighting Bob

      1. We still don’t know much about Trump’s health problems. That he went home most evenings (or all evenings) during the campaign implies he either needed special medical treatments at home, or he was afraid that hotel staff might learn something about his condition. So he is probabaly medically unfit (a bit like Woodrow Wilson in the final year of his presidency).

      Geez.
      They both flew home nights.
      Look it up.

      2. Foreign influence?
      Right, Trump is under no foreign influence.

      And no, i am not a Hillarybot.

      Geez.

      1. Outis Philalithopoulos

        As far as I can tell, Vatch was arguing that the criteria presented to justify having electors vote against Trump could be applied to Clinton as well, not that she, but not he, is legally unfit to be president.

  7. George Phillies

    Loyal to Russia? We seem to be seeing a recycle of claims that Obama was born in Jakarta, Kenya (readers will note a certain geography issue here), with the fine details changed, but with the same intent of delegitimizing the sitting President.

    Now, the Federal Government has substantially destroyed its legitimacy already, through such objects as the Stellar Wind spy system, but the objective here is to delegitimize a person, as opposed to an entire branch of government delegitimzing itself.

    If the Democrats manage to use the Electoral college to defeat Trump, which in principle could happen, though the smart money is betting against, there will then be a certain amount of unpleasantness.

  8. EGrise

    John Robb over at Global Guerrillas issued a warning about this just yesterday: WARNING: An Electoral Coup is Underway

    I love JR, but think he may be overstating the case here. That said, I agree with the first comment there that the real danger is that “every future election outcome will get fought in the electoral college” with the result of effectively de-legitimizing all future elections. The Brooklyn brain trust and their allies need to think very, very carefully about what they’re doing here.

    (Not that they will.)

      1. Mike

        It’s funny Lambert quoted Pinochet, as not more than a month or so ago Turner Classic Movies showed a documentary on the Chilean coup called “The Battle for Chile, Part I” and “Part II” (apparently there is a “Part III” that wasn’t shown). I was totally unaware of these movies until I saw them there. According to those documentaries, Washington and the CIA had a huge hand in training, financing, and advising those elements that pulled off the coup of a democratically elected Chilean President- if true it was pretty disgusting seeing what our government helped put the Chilean people through. I think it’s pretty well accepted the US intelligence services have intervened in numerous countries’ elections over the last many decades, so the CIA using those talents on a domestic election isn’t totally out of the question I guess, though seems pretty unlikely to me. Hopefully they don’t use the Chile playbook- as in the end when all the behind the scenes undermining they did to try to turn the people against the President didn’t work, they just bombed the hell out of the Presidential Palace and killed President Allende. If you can put up with subtitles I’d recommend the movies, they were pretty good.

        1. sierra7

          An excellent source for the Chilean mess and many others:
          “Killing Hope”
          William Blum
          “US Military and CIA Interventions Since WW2”
          Well documented with great sources.

  9. juliania

    Bill Black’s appearances on this forum always remind me that Constitutional procedures can be and have been used not so long ago to correct financial misadventures from within the traditional system of government as it was meant to function – we disregard any of these precedents at our peril, for today with even the increased freedoms that followed from those early discussions, arguments, etc., where are we going to find the motivated new Founders? Certainly not within the Clinton camp, nor within Trump Towers.

    It was a complex system then devised, and there were interests to be accomodated, as there are today. Thanks, Lambert, for pointing out Hamilton’s considerations, each of which must be weighed. And not to be forgotten – Franklin’s sagacious comment, “…if you can keep it.”

    I for one, very much want to keep it.

    1. hemeantwell

      It was a complex system then devised, and there were interests to be accomodated, as there are today.

      Yes, and one that reflected a decentralized agrarian economy with a tiny manufacturing and financial sector. Today I’m afraid that the TPP is what the New Founders have come up with.

  10. Oregoncharles

    “The Framers were, as Hamilon writes in Federalist 68, creating a “system.””

    Let’s bear in mind that the Federalist Papers were propaganda, designed to sell the Constitution to wary states. They’re nonetheless our best evidence of the writers’ intentions – but we have to consider the purpose.

    Wish I could remember where I saw it, but there’s also a very reasonable claim that the EC was an afterthought. It was obviously intended to reassure the smaller states (also the purpose of the highly un-democratic Senate). It was amended almost immediately, in Amendment 12. Even that leaves the impression of a Rube Goldberg device practically designed to cause trouble – as indeed it has, over the years, and as it is this year.

    It’s also important that the Founders, and Hamilton in particular, did not believe in democracy. They were intentionally setting up an oligarchy, especially if you consider the restricted franchise in their day. As Hamilton says, the EC was intended to prevent precisely the result it has now caused: the election of a populist demagogue with no visible qualifications. As it happens, and not too surprisingly, he’s also a plutocrat from the propertied class the constitution was meant to protect.

    There is simply no excuse, in a supposed modern democracy, for systematically (there’s that propaganda word again) thwarting the expressed will of the people. I agree that Hillary would be just as much of a nightmare, possibly worse, but the particulars are beside the point.

    That said, changing the rules in midstream is not a good idea. As Lambert has pointed out, it’s very likely to cause bloodshed, precisely what politics is supposed to prevent. My argument is for legal reform of the process, either via state law (the Popular Vote idea) or constitutional amendment. Either will have to wait, because the Republicans are benefiting from the botch and they’re in charge.

      1. Cry Shop

        What democracy? You mean the democracy that kept slaves, then exterminated whole nations of aboriginal peoples when it was found imported stock was easier to domesticate? The government that keeps seizing the little poor land left to the few surviving aboriginals when ever it suites them? That’s no democracy, but go a head and whine about fixing something that won’t really do any good, vs addressing issues that might not be in your self interest.

    1. old@palmetto

      Great point about the FP esp in the era of ad copy readability about 3rd grade. Questionable whether current civilization could manage to create a republic over the inevitable howling of the unwashed.

    2. proximity1

      RE : “Let’s bear in mind that the Federalist Papers (FP) were propaganda, designed to sell the Constitution to wary states.”

      I agree.

      “They’re nonetheless our best evidence of the writers’ intentions.”

      About that, I’m not so sure–as, unlike Madison’s Notes on the Convention, the FP don’t offer the kind of back-and-forth, objections and reconsiderations, the raising and answering of doubts, etc.

      __________________________

      also from The Avalon Project —

      E.g. : http://avalon.law.yale.edu/18th_century/debates_813.asp

      Madison Debates :

      ( from the notes of the session of Tuesday, August 13, 1787 ) :

      … …

      (Madison) “There were 5 States which had opposed the equality of votes in the Senate, viz. Masts. Penna. Virga. N. Carolina & S. Carola. As a compensation for the sacrifice extorted from them on this head, the exclusive origination of money bills in the other House had been tendered. Of the five States a majority viz. Penna. Virga. & S. Carola. have uniformly voted agst. the proposed compensation, on its own merits, as rendering the plan of Govt. still more objectionable. Massts. has been divided. N. Carolina alone has set a value on the compensation, and voted on that principle. What obligation then can the small States be under to concur agst. their judgments in reinstating the section? ”

  11. Oregoncharles

    “Desiderata” are goals, not requirements or preconditions. Not sure that matters here, but it’s bugging me.

  12. Tom Stone

    Tumult and disorder would certainly result if the EC overturned the results of the Election and a Civil War is not out of the question.
    These people are nuts.
    Risk a Civil War to enthrone CLINTON?
    GMAFB.

  13. Oregoncharles

    “What would he think when the field dissolves into open violence?” As it very nearly has at least once before, actually twice, both in the 19th Century. (The Civil War wasn’t over the succession – count one for Hamilton.)

    If he’s honest, he’d think he shouldn’t have designed such a creaky, self-contradictory device. The fundamental contradiction is holding an election, THEN second-guessing the will of the people. The Framers were used to a parliamentary system. They didn’t want that because they’d just fought a war with Parliament, but they actually designed the EC as a temporary, rump parliament, partly because they didn’t trust the people, and partly out of habit. The Tweflth Amendment, on the other hand, was intended to prevent deliberation by the Electors, but depends on 19th-Century conditions. Present technology makes it not only possible but fairly easy. Granted, that would be changing the rules in the middle, again.

    I should say that I see the present mess as desirable, precisely because I think the EC is a botch that should be undone. For that to happen, we have to experience the contradictions. Experiencing a Trump presidency just might do the job (looking relentlessly on the bright side).

    1. Wanderingmind

      The Twelfth Amendment, on the other hand, was intended to prevent deliberation by the Electors

      Not sure I see how the twelfth amendment does this.

      1. Oregoncharles

        It requires the Electors to vote in their respective state capitals – separately, that is. At the time, with horse-and-buggy communications, that prevented them from consulting each other with any effectiveness – even the electors in a given state would have little prior communication, unless they got there earlier.

        Today, of course, electronic communications make it easy to hold a meeting of people scattered across the country; it’s a little frustrating, but works. So there could be a whole bargaining and logrolling process before the vote – IF the electors aren’t bound.

        The National Popular Vote idea depends on everybody knowing, well before, what the popular vote was. Even that would have been dicey at the turn of the 19th Century, a practical reason for the EC.

        1. Teddy

          Interesting point. Wasn’t there a time when radio was urged not to report early returns so that people would vote by their own convictions instead of either giving up on a loser or deciding to join the winning team?

    2. Sandwichman

      “The Civil War wasn’t over the succession…”

      That’s your opinion, man.

      http://www.civilwarinart.org/exhibits/show/causes/introduction/the-election-of-1860-and-seces

      The presidential Election of 1860 brought these conflicts to a head with dramatic consequences. The Democratic Party split into three groups along regional lines, each vying for control of the party and each holding different ideas about how to deal with slavery in the West. These three camps lined up against Abraham Lincoln, the nominee of the Republican Party, who advocated that the West be free of slavery entirely. Because Lincoln’s opponents were so deeply divided, he won with less than forty percent of the popular vote (but with fifty-nine percent of the Electoral College) and without taking a single slave state. Although Lincoln’s election was fair, it nonetheless pushed the Deep South toward secession.

      South Carolina responded to Lincoln’s election first, seceding from the Union on December 20, 1860.

      http://www.historynet.com/secession

      With the election in 1860 of Abraham Lincoln, who ran on a message of containing slavery to where it currently existed, and the success of the Republican Party to which he belonged – the first entirely regional party in US history – in that election, South Carolina seceded on December 20, 1860, the first state to ever officially secede from the United States. Four months later, Georgia, Florida, Alabama, Mississippi, Texas and Louisiana seceded as well. Later Virginia (except for its northwestern counties, which broke away and formed the Union-loyal state of West Virginia), Arkansas, North Carolina, and Tennessee joined them.

      1. Oregoncharles

        Thanks. I didn’t realize Lincoln had been elected with a minority. That makes the Civil War yet another example of how bad the EC is. Deduct one for Hamilton.

      2. Katharine

        It’s debatable. The text of South Carolina’s reasons for secession refers to subversion of the Constitution but does not actually make a case for that claim:

        http://teachingamericanhistory.org/library/document/south-carolina-declaration-of-causes-of-secession/

        Observing the forms of the Constitution, a sectional party has found within that article establishing the Executive Department, the means of subverting the Constitution itself. A geographical line has been drawn across the Union, and all the States north of that line have united in the election of a man to the high office of President of the United States whose opinions and purposes are hostile to slavery.

        It does not seem to me that saying that the existing order cannot endure and that therefore the Constitution ought to be amended constitutes subversion. Amendment is provided for within that document itself. I would say South Carolina didn’t like the outcome of the election, but did not and could not claim that it had not followed due form.

  14. Oregoncharles

    “Didn’t the voters make that judgment already?”
    Which voters? We have a solid majority on one side, a collection of states adding up to 270+ EC votes on the other. As above, I’m not arguing for overturning the EC decision this year, just questioning the logic – and the very existence of the EC.

  15. stefan

    Face it, the national election is gerrymandered in such a way that the right wing has an unrepresentative advantage, just as are many congressional districts in numerous individual states.

    The previous illegitimate right wing administration let its guard down such that our two front teeth got punched out, ginned up a phony war in Iraq, made torture a matter of national policy, and finished us off with a dessert of economic collapse requiring the frantic CPR of our wealthiest people and institutions (who stood choking at the roulette table).

    It’s time to get rid of the Electoral College, and require that congressional districts be drawn in conformance with existing county boundaries.

    1. ian

      There should simply be a requirement that congressional districts be convex polygons – it would be much harder to game.

    2. Oregoncharles

      I agree about the EC, but I suspect that drawing the district lines based on county boundaries would be prohibitively difficult.

      The goal is to make them non-political. Oregon actually accomplished that in 2010 by having an equally-divided Legislature, so they resorted to a commission, the correct approach. My county used to have the worst gerrymander in the state; actually made campaigning difficult, so getting rid of it was a relief.

      Computers could draw good district boundaries given a few parameters; that’s how it should be done, through an independent commission or maybe the state Supreme Court. Imposing that nationally would require a constitutional amendment; a SCOTUS decision could encourage it.

      1. Vatch

        Here’s a web site with example non-gerrymandered Congressional districts for the entire country:

        http://bdistricting.com/2010/

        North Carolina and Illinois are two states that have a huge contrast between the existing gerrymandered districts and the suggested reformed districts. Florida, Ohio, and Louisiana currently have some oddly shaped districts, too.

        The site also has example districts for the state legislatures.

  16. Roquentin

    If the Clinton camp really and truly is dumb, short sighted, and selfish enough to go through with this, they rather than the supposedly “fascist” Trump will be the beginning of the end of electoral system in the US. What I can’t wrap my head around is how they don’t seem to consider the long term implications of such a choice at all… As if this is somehow the last election which will ever happen, and the standards this sets, which amount to moving the goalposts after the fact because you didn’t get the results you wanted, could never prove disastrous in the future. These people have lost the plot. They’ve gone ’round the twist. I’m almost as frightened of them as I am of Trump right now.

    1. aab

      It’s possible they’re just being shortsighted and stupid. They have done many things that seem to be the product of those traits.

      On the other hand, it’s possible that they figure, break the Electoral College, get back in power, use the military as needed to maintain control, and then keep the Presidency for decades by controlling California and New York. They only care about the Presidency as a party now, so switching to the popular vote — if they can get away with it — would give them what they want without having to do the difficult work of rebuilding the party or giving the little people any of the things they need. I think that’s ALSO shortsighted and stupid, but in a different way.

      I find them much more frightening than Trump. And, contrary to what the trolls assert when they drive by, I am afraid of Trump. I’m even more afraid of many of his cabinet picks. But what the New Democrats have done and are doing seems, in the big picture, much worse and more dangerous.

      1. tegnost

        globalisation requires the subjugation of nation states, the TPP is on the rocks with all the necessary enforcement mechanisms, this is the next step, why not start here with destroying the american peoples right to self govern? after all, TINA to globalisation, right?

    2. Fiver

      It all depends on whether they are seriously trying to overturn the result, or if there is a different goal. I am inclined to think the latter.

      1. fajensen

        In my opinion, the Democrats and especially the Clinton’s are fundamentalist tribal people. According to their view of the world, whether something is Good or Evil depends only on “One of Us” or “Not one of Us” is doing it, not on the quality of the act itself. Very much like their Saudi sponsors.

        Maybe they are simply shitting bricks over what could happen when Donald Trump, or worse, Michael Pence get their mitts on all the secret legislation that Bush and Obama have crafted, which is turning the presidency into something very much like a medieval king: “The only law of the land, ruler of life and death”.

        Another reason to panic could be that, surely, they must have had some long-term game in mind with this and the coronation of Hillary was somehow crucial to achieve the “right” outcome. “The stars are right, they might not be right again for a long time”. Even Apocalyptic nut-baggery like this, cannot be easily dismissed; There is always a rich vein of straight-up crazy permeating American “elite” thinking: The Singularity University, Ayn Rand, Kissinger, The Dulles Brothers, Hoover, McCarthy, ….

  17. Wanderingmind

    I have a somewhat different take on Federalist 68.

    Hamilton and the framers of the constitution were working in the context of both monarchical and parliamentary government. They chose to reject monarchy but keep the powers of a monarch in an executive.

    They could have left the choice of the executive to the congress, the institution which they created and which is analogous to parliament. They chose not to. Instead, they chose a deliberative body, like the house or the senate, which had only two decisions to make: the choice of President and Vice-President.

    In order to make undue or corrupt influence over the choice of the presidency and the vice presidency difficult, they created 13 different deliberative bodies whose votes were cast in geographically diverse areas.

    The idea of a deliberative body is that it must deliberate. Thus, in my view, all of Hamilton’s language about discernment, etc.

    So, on an abstract level, I think Lambert’s analysis is wrong.

    However, the specific process of choosing electors at the state level is where I think Lambert’s analysis is more apt.

    It is one thing for candidates to the electoral college to present themselves to the voting public as “deliberators” who will do their best to make the “correct” choice.

    It is quite a different matter for such candidates to state to the voting public that, if elected, they will vote for Donald Trump.

    If, in the latter case, a successful “Trump” elector to the electoral college does the opposite and votes instead for Hillary Clinton, then there has been a fundamental betrayal by that elector.

    The analogy would be to a person who runs for the House of Representatives pledging that s/he will never, under any circumstances, vote to eliminate social security and then doing just that at the first opportunity after being elected.

    Such a betrayal by a member of the Electoral College is even worse, in my opinion, because of the temporary and limited purpose of that body.

    So, it’s not the overall scheme of the Electoral College which argues against a member doing what the Clinton forces want him/her to do, but the fact that there was a specific pledge and now that person is choosing to violate his/her promise.

    1. Oregoncharles

      Yeah, I signed one of those oaths, for Jill Stein. Not that I was too worried about it being a problem.

      However, that was a matter of state law, which varies widely, as the Constitution makes the states responsible fo rtheir electors.

      1. wandering mind

        It may be a matter of expectations as much as law. The sense of betrayal would be the same, IMO, because voters don’t expect the electors to act independently.

  18. clarky90

    Some “powerful” (pathetic) people are petrified at what will be revealed by the FBI after Donald Trump is inaugurated. It starts with “P”, as in Jimmy Savile.

    This is an existential threat, so cataclysmic, that they are prepared to foment a civil war in the USA in order to muddy the the water.

    Hamlet then turns to his mother and asks her, “Madam, how like you this play?”, to which she replies “The lady doth protest too much, methinks.”

    1. Sandwichman

      Who ya’ gonna believe, the CIA or some fake news National Enquirer wannabe on face book?

      It’s not either/or, Snookums. It’s none of the above.

  19. ProudVolunteer

    I see this opposition to the EC as nothing more than an extension of the love of globalization being applied down to the State level. Advocating that all States be required to cast their EC votes for the winner of the popular vote equates to the many being ruled by the few. This argument ignores the simple fact that in my state, Tennessee, a majority of citizens voted for Mr. Trump. Any system that forced Tennessee to cast EC votes for Mrs. Clinton would be forcing the many to be overridden by the few. I understand that the opposing view is that the EC does that on a National scale but elections are a function of the States not the Federal Government. In this case the few states are asking that the many agree to allow ourselves to be overruled because they view our decision to be invalid or irrational. It is a simple fact that people in a majority of States have a pride and identity that they get from being a citizen of their home State. I point to my State for evidence of that. The majority of Tennesseans are proud to live and work in “The Volunteer State”. We have a common desire to be of service to our fellow Tennesseeans and the Nation as a whole. We do not, however, share the opinions and world view of a majority of Oregonians as evidenced by the election. We respect your right to your opinions but we demand that you respect ours as well. I would never support any proposal that would strip me of my identity as a Tennesseean. I could live in any State in the Union but I choose Tennessee, not because I am some rube that has never traveled outside her borders but because I have and, to me, this is the best place on earth.

    1. Dwight

      Well said. Clinton’s popular vote margin comes from California and New York. Excluding those states, Trump won popular vote.

  20. John

    I am not happy with Mr Trump’s election. I would not be happy had Mrs Clinton won. I saw dangers and difficulties from each of them. But the election is over. The quixotic recount in Wisconsin changed nothing and if it had Mr Trump would still have a sufficient number of electoral votes so is it not time to accept reality and accept responsibility for the outcome. The alternative is some sort of coup d’etat. Do you really want to start down that road?

    1. Sandwichman

      “The alternative is some sort of coup d’etat. Do you really want to start down that road?”

      Been travelin’ down that road a long, loathsome time, John. Call it the Solid South, the military-industrial complex, corporate personhood, the bi-partisan national security state.

      Acceptin the election outcome is the new lesser evil?

      And here I thought folks were fed up with lesser-evilism. I guess I was wrong again.

      1. witters

        You Americans are so funny. You have no democracy – all the evidence gives you kleptocratic oligarchy. And now you piddle on about what is the best electoral system for kleptocratic oligarchy!

  21. JustAnObserver

    What, exactly, are HRC and her `cabal’ (incl., appparently the CIA) so frightened of that’s driven them to this level of Red-baiting EC twisting political madness ?

    Tin Foil Hat possibility: Have they heard or come to the conclusion that a presidential pardon is now off the table with Obama now more concerned with protecting his `legacy’ than protecting the Clinton dynasty – exposed to Trump’s vindictiveness as it is via the Foundation ?

    1. Fiver

      I do not discount that possibility. Craig Murray, for one, insists it was a US insider (rumored to be FBI). If the ‘hat theory’ is the case, one would expect that the Admin formally naming Russia would soon lead to some quiet motion somewhere to have all the e-mails legally ‘sealed’ or removed from legal action, even if still up on Wiki, because if the Russians ‘touched it’ they might just as well have all been ‘faked’ – at least according to the Truth Givers in CIA, WaPo, NYT. But there’s no reason not to speculate even further – suppose the CIA and FBI have been secretly cooperating, that the ‘insider’ turns out to be a (it is claimed) Putin ‘agent’, thus taking the e-mails and Foundation off the table, providing BS cover for what remains an absolutely horrific foreign policy mess they (Deep State) created while at the same time providing a way out of being President for a frustrated Trump (who is already losing interest in the job) to resign, as well as destroying the reputation of Wikileaks? And when Tillerson/Pence reverses this hopelessly lost policy towards Russia that had to be changed in any event or end in war, the Dems will jump as high as desired.

      When what you see is completely crazy, it likely is completely crazy. Remember, they have 2 million people with ‘top secret’ security clearance in the US. They practically can do what Rove claimed vis a vis ‘making reality’, even if it has to be crazy to make it work.

      This is what happens when powerful actors deliberately set out to destroy the truth – serious people have no option but to try to look at things from as many angles as possible in order to even take an educated guess these days. So far as I’m concerned, they’ve opened Pandora’s Box and tossed the key.

  22. Brad

    The formal argument that militates most against the Clintonite interpretation is the Madisonian one. That the Electors, as a transitory body, reflect the popular will of the *several states*, in the *dispersal* of that will as the most effective guard against the ills outlined in #68 (and throughout the Federalist papers). Was Hamilton simply following Madison’ lead here as established in #10?

    Because what the merchants and planters feared most of all was that the popular will would unite as one against them as a ruling class. Fortunately for them that people was overwhelmingly rural and already materially dispersed by agrarian nature, and indeed the founders of the United States were able to democratically harness this agrarian mass to their project for continental conquest for the next 100 years.

    But those days are long gone now.

  23. kevbot9000

    This is ignoring that the Electoral College (and the House of Reps) were built on the disenfranchised. It was a way to count 3/5s of a slave to get Southern states on board (also led to Adams being a one term president) and has continued to enable disenfranchisement through to today. Also Faithless Electors have never swayed an election (One vice president pick ended up with who would’ve been elected if the electors had voted for him).

  24. Disturbed Voter

    If campaign contributions greater than $100 were simply designated as felonious bribes … all this would settle into place. No super-PACS, no union contributions, no corporate sponsorships, no plutocrat dinners. The problem for the US is that corruption is the only bipartisan thing we support.

  25. MM

    I don’t think much of the arguments for electors to vote on their own accord since those aren’t the rules of today’s game but i don’t think that Lambert gets Hamilton right. If you read 68 carefully you will see that the smaller group of electors are not necessarily supposed to follow the sense of the people but to determine it–it is in their corporate deliberations that they come to the judgment. Don’t forget that the Constitution did not presume that the Electors would be elected by voters. It left it up to the states to determine and it was awhile before most turned to popular voting. The business about cabals had to do with the fact that senators and reps couldn’t be part of the EC and therefore work to choose the president directly.

    As far as Hamilton and discernment goes, don’t forget this part of 68 which shows the difference between his assumptions and our politics: “Talents for low intrigue and the little arts of popularity may alone suffice reading elevate a man to the first homors in a single state; but it will require other talents and a different kimd of merit to establish him in the esteem and confidence of the whole university, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States.”

    I’m not sure what the 12th amendment has to do with this though. That simply split the voting of the president from the vice-president after Jefferson/Burr.

  26. scott967

    There is no requirement for a “popular vote”. Electors are appointed in states in such Manner as the Legislature thereof may direct. “Appointment” by the legislature itself (as were Senators prior to Amendment XVII) was common initially and continued in South Carolina until reconstruction. Colorado also had its three electors (who voted for Hayes) appointed by the legislature in 1876. The concurring opinion in Bush v Gore reiterates the authority of legislatures in the appointment power.

  27. Cry Shop

    (As a sidebar, we should remember that the Framers were bootstrapping an entirely new system in a world otherwise ruled by monarchs and emperors, in which dynastic wars of succession were not uncommon and were greatly feared. So I think we may forgive them for any bugs we might find.)

    as Latinist, and often speakers of Classic Greek, the founding fathers were not going completely into untended ground. They were very familiar with the historical operations of the (slave and trade based economy) Roman Republic and Empire. Franklin, Jefferson, Mason, Madison, and Washington all admired and modeled some of their behavior and concepts from historical figures such as Marcus Aurelius, the two Cicero, etc.

    In particular, even in so called post-Republican Rome the Senate still sat, and so did the Plebs (house of) representative body, each with it’s delegated powers, and there was a “supreme court”. In many ways we have inherited the Roman system up and to the corruption of the system so that a few elite “families” now run the show, and it is a show. Even the gladiatorial battles…

    Mason, the real father of the Bill of Rights, very much feared the Constitution, as structured, was going to lead to this corrupt state, which did in his former close relationship with Washington.

  28. pogohere

    12-13-16: Today’s results are critical for the formalities on 12-19-16:

    3 U.S. Code § 5 – Determination of controversy as to appointment of electors

    If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

    (June 25, 1948, ch. 644, 62 Stat. 673.) [emphasis added]

    https://www.gpo.gov/fdsys/pkg/SMAN-107/html/SMAN-107-pg652.htm

    discussed here: https://www.armstrongeconomics.com/international-news/north_america/2016-u-s-presidential-election/why-the-electoral-college-is-december-13th-not-19th/

    1. Oregoncharles

      Questionable whether it’s Constitutional, since the the constitution says the states determine how they choose their electors. Makes sense, though: follow the rules as set beforehand. Might affect a Congressional determination of legitimacy, also called for the constitution (Congress, not the SCOTUS.)

  29. SA

    Perhaps I’ve misunderstood, but it appears the only way the Clinton crowd could throw the election into the House would be to persuade 37 Republican electors (who are mostly party hacks) to vote for someone other than Trump. The chances of this succeeding seem to me to be nil. I’ve read that some Democratic electors are prepared to change their votes as part of this effort, but that’s meaningless without getting 37 Republicans. This effort might warm the hearts of a few deep-pocket Democratic donors (well, if they had hearts), but this failure to accept reality just makes the Democratic establishment smell even worse.

  30. dontknowitall

    Thank you very much Lambert for clarifying this issue. I always learn something new here…It is puzzling Sanders is quiet as a church mouse on all of this…I guess if your foes (Hillary and her bots) are busy digging a hole you don’t want to enlighten them.

    All of this has been most strange…I started out in my conventional thinking as a democrat but anti_Hillary and then strongly pro Sanders as I got increasingly angered at the way his ideas and the man himself was treated by the MSM and in the Dem primaries. NC taught me a lot that gave me cause to rethink and I eventually became a Sanders bro…I couldn’t vote for Hillary and Trump is the escape valve that might force the entrenched forces out of power and permit something new to appear. Like the poet said – early in a quiet morning I too can almost hear the gentle heartbeat something more hopeful about to be born. I hope Sanders engages with Trump as loyal, strong and principled opposition rather than part of Hillary’s disloyal cabal of interests.

    So the impression I get from all of the discussion here and in other places is that after all the commotion Trump/Pence will still be elected and Trump will be confirmed as either the luckiest (in his enemies) or the most skilled political operator since Lincoln.

    Since other members of the commentariat have recently noticed a new spring on the step of the rabid losers of the last election I fully expect new Youtube videos of crying and gnashing of teeth to show up online on the 20th. Popcorn is on order

  31. Rahm Mexico

    Thanks for this essay, this is a very strong originalist case that attempting to manipulate the EC to change the election night outcome is unconstitutional. You can make an easier “living constitution” case against the move by noting that it has been well over 150 years since the independent judgments of the college were allowed to have any meaningful effect on an election (if they ever did; the major weakness of the originalist case for the EC is that it never actually worked as it was intended). Monkeying around with the EC vote, even to send the election to the House, would be a major violation of our democratic norms. Even if James Wilson (who “founded” the EC, not Hamilton) had intended it to exercise independent judgment, no one today expects it to do so. We expect it to do the opposite, and have done for a long time.

  32. Larry Rosansky

    I dunno, I’m an attorney, studied the Constitution, jurisprudence, hermeneutics. But I don’t need any of that to know that the electors are NOT constitutionally bound — I can read the Constitution, and I don’t see it saying that they’re bound. So either they’re not bound, or maybe, at best, it’s ambiguous as to whether they’re bound (State laws to the contrary should be invalid under the Supremacy clause).

    Now you can twist your head up about original intent and language and hermeneutics in service to Truth, but that’s not helpful here: the best interpretation in this case is any one that allows the electors to stop a Trump presidency. And in the future, if that interpretation turns out to be unfavorable on other facts, you adjust as needed. That doesn’t mean that the explanation as to the propriety of that interpretation should lack reasoning or be unpersuasive, but when this much is on the line, no need to let the tail wag the dog.

    It would certainly be untoward for the electors to appoint Clinton president given that she didn’t get 270 electoral votes AND given that electors may reasonably believe from the email debacle that she’s either a crook or has very poor judgment about very important things AND given that the electors understand that she’s so hated that she might not be accepted as president. At the same time, electors may reasonably conclude that Trump is a demagogue, unfit for office, and a clear and present danger to the future of the Union, in which case they would be fools to appoint him.

    Although time is running out, I remain hopeful that Clinton will demonstrate some statesmanship here and save all of our asses by directing all of her electors to vote for a conventionally-qualified alternative who would put tremendous pressure on Trump’s electors to flip so that the alternative — Kasich, for example, would get to 270. I have no desire to see how a Trump presidency goes, and I’m frankly shocked that so many intelligent people would rather see Trump inaugurated than risk trying something even moderately novel.

    Continually worrisome how here in the States, the Right grasps that ambiguity provides opportunity, while on the Left ambiguity appears to just precipitate paralysis.

  33. herkie1

    It is really very simple, neither side is going to be happy no matter what is done from this point forward. The left (Clinton) and right (not NECESSARILY Trump voters) have irreconcilable differences at least as deep and entrenched as the sentiments that divided the USA in 1860. I believe that the only thing holding up a second civil war is the memory of the first. But, I also believe that Trump is so wholly unfit for office he WILL do and say things that trigger this war eventually.

    The question for me is not whether secession will be discussed and seriously considered, but what will trigger it and if the USA has a Lincoln-like leader that will insist the union remain one nation. If it is Trump that will be impossible, because it will be his personality that provides the trigger, he thus cannot be the savior of the union.

    A second civil war is NOT out of the question, though at what level it will be fought is still debatable. I am thinking that a very possible outcome is that states like the west coast blue states could leave and simply be allowed to, that the NE states could do likewise, that the old confederate states may also. The Great Lakes states might well decide to band together, or alternatively when you look at the map of counties where half the population resides in the USA another very possible outcome is a mercantilist union of city states controlling regions around they sphere of influence.

    You might laugh at this, but I actually see some form of disillusion of the nation as now more likely than remaining unhappy but intact. Neither side is willing to put up with the other side’s crap any longer.

    I side with the blues because I think the crap on the blue side is repairable if the red side stops tossing sand into the machinery of government which is needed to fix our problems. For greedy partisan gluttony for power they would happily terminate the USA, and I think they have discovered that forces outside the USA share their goals, such as Tsar Vladimir in Russia, they have no problem exploiting that aspect of politics. As long as they can plausibly deny this alliance anyway, their problem is they do not know that plausibility is up to the beholder. I am not buying their story that Trump was not aided by the Russians.

    Even the GOP must groan silently when Trump crows about his historic landslide and of course claims the mandate that would attend to such a historic vote, but the reality is he is only getting in on a technicality having lost the popular vote by a few votes under 3 million.

    So, both side have adequate fuel for their arguments that what we have here now simply no longer works.

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