Sunday, December 11, 2016

The Electoral College Trump Card

POST-GAZETTE - Res Publica
The Electoral College Trump Card
by David Trumbull, December 9, 2016

If we went by the popular vote, Secretary Clinton would be the next president. FALSE.

We cannot know who would have been elected had the election been decided by the popular vote. Neither candidate campaigned to win the popular vote, they campaigned to win the electoral vote. Had it been a contest for the popular vote both candidates would have deployed their resources quite differently which would have resulted in a popular vote different from what happened.

But Clinton can still win if the members of the Electoral College honors the popular vote. FALSE.

Mere stuff and nonsense. It's silly speculation on the part of persons with little understanding of how our republic works.

1. The Trump electors are pledged to Trump. In many states that pledge is legally binding. In 1952 the Supreme Court ruled that electors are not entirely free and that states can require that they be pledged.

2. The Trump electors were vetted by the Trump organization and/or the state Republican Party to assure that they would be loyal.

3. The Trump electors are in states that Trump won, why would they vote contrary to their pledge and contrary the suffrages of those who made them electors?

4. Trump won the electoral vote by a large margin, so even if, as has happened in the past, a very small number of electors were unfaithful, it wouldn't change the outcome. The only reason that past faithless electors were not charged under state law is that their acts did not change the outcome.

5. Yes, the Constitution appears to assume that electors have discretion, but that reading only makes sense in the early elections, when not all states even took a popular vote (for the first nine presidential elections they didn't even record the popular vote). In this election, the names of the electors did not appear on the ballot. No voter can honestly state he thought he was voting for [fill in the name of some elector] rather than Trump. Everyone knows that the election was state-by-state for Trump v Clinton (and third party candidates). Since the time that all states choose electors by popular vote, no unfaithful elector has ever influenced an election. A large number of unfaithful electors would, rightly, be seen as an attempt to overthrow the constitution and those votes would be voided, with the faithless electors facing legal charges.

The error is a result of reading the Constitution in a vacuum. The Constitution must be read in the context of laws written to enact its provisions, court decisions that clarify the meaning, and the actual practice of our democracy under the Constitution.

I am reminded of this: "In a Lecture of mine I have illustrated this phenomenon by the supposed instance of a foreigner, who, after reading a commentary on the principles of English Law, does not get nearer to a real apprehension of them than to be led to accuse Englishmen of considering that the Queen is impeccable and infallible, and that the Parliament is omnipotent." Newman, Apologia pro Vita Sua, 1864.

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