Lady Gaga, faithless electors and the crazy long-shot way Hillary Clinton could still be president

Philip Nelson

On Sunday morning, experts were predicting that when all of the ballots are counted, Hillary Clinton will have won the popular vote by as much 2 million people; about 1.5 percent of the popular vote

As the New York Times’ David Leonhardt notes, Clinton — the loser — won by a larger margin of victory than Richard Nixon in 1968 and John F. Kennedy in 1960.

Donald Trump becomes just the fifth president-elect in American history to take the electoral college but lose the popular vote.

So what is the electoral college?

Essentially, when you vote for president, you’re actually voting for an elector who places a vote in the electoral college. There are 538 electors — one for every member of congress, and then we just pretend the District of Columbia is a state (and has congressional representation, which it totally doesn’t LOL).

This system is kind of bizarre, but it’s also rarely out of step with the broader population so it’s almost never challenged.

In a recent conversation with Vox, Yale Professor Akhil Reed Amar explained how pressure from slave states lead to its original creation:

In a direct election system, the South would have lost every time because a huge percentage of its population was slaves, and slaves couldn’t vote. But an Electoral College allows states to count slaves, albeit at a discount (the three-fifths clause), and that’s what gave the South the inside track in presidential elections. “And thus it’s no surprise that eight of the first nine presidential races were won by a Virginian. (Virginia was the most populous state at the time, and had a massive slave population that boosted its electoral vote count.)”

Another important point is that because every state gets two electors to begin with (the rest reflect each state’s population), less populous (“smaller”) states have a disproportionate influence.

One of the justifications for the electoral college system — like the existence of superdelegates in the Democratic Party’s nomination process — is that it provides a means of choosing a new president if the winner dies or falls into scandal* (or some other unforeseen circumstance) between the election and taking office.

Now an important note about the electors: there’s no law forcing them to vote for who the people elect them to vote for. A slight majority of states have laws requiring them to pledge to vote for who the people choose, but the Supreme Court has never ruled that actually punishing them is constitutional.

The magic number

Forty-two. That’s how many additional electoral college votes Hillary Clinton would need to hit 270 and take the presidency.

Faithless electors — which sounds like a bad political hardcore band — are the electors who, for whatever reason, don’t vote for the candidate they were elected to vote for. According to Fairvote.org, there have been 157 of them since 1796 and 82 were initiated because the elector didn’t support the candidate. They’ve never swung an election, but they have denied both candidates a 270-vote majority and pushed the decision to the House of Representatives.

To do that, just 21 electors would have to switch sides to Clinton or abstain from voting for Trump… It’s perhaps possible that the House would at least vote to make Mike Pence president instead of Trump.

As of Sunday evening, a change.org petition encouraging electors to defect from the Republican candidate and vote for Clinton had garnered over 4 million signatures — twice the number she won the popular vote by. The petition reads, in part:

Casting your ballot for Hillary preserves majority rule — the “sense of the people” — and prevents the most unqualified candidate in history from taking office. Never in our Republic’s 240 years has our President had no previous experience in an office of public trust, be it elected or appointed, civilian or military. Never has a President admitted to sexual assaults. Never has a President encouraged violence at campaign events.

There is no reason electors cannot vote with their conscience. They are not taking away the majority vote, and are not violating the Constitution.

So here’s where Lady Gaga comes in:

Actually she isn’t really central to any of this, but Democracy Now!’s coverage of the petition on Friday consisted almost entirely of footage of Gaga giving peace signs to a crowd at a Clinton rally. So… there’s that.

https://youtu.be/5epEGeC5GTo?t=1m10s

This is really unlikely, but isn’t it also kind of… immature?

Really, the only time anyone cares about the existence of the electoral college are the scenarios exactly like the one we find ourselves in now.

“This is just how we do things. Suck it up and quit being a sore loser!” is a pretty good way of summing up the argument against faithless electors. It’s also what Democrats would be saying to Trump supporters if the tables were turned.

That doesn’t make it wrong or right — it’s just the reality of politics. Here’s how Donald Trump reacted when he thought Mitt Romney had won the popular vote in 2012:

screenshot via LBC

The current president-elect CALLED FOR REVOLUTION!

Democracy?

It’s worth considering two key points: 1) the electoral college is fundamentally undemocratic, and 2) this election was also undemocratic, but in a different sense.

“The Electoral College is in tension with one strong democratic ideal that I endorse: the idea of one person, one vote,” Amar argued later in the Vox interview. “The Electoral College ends up counting votes unequally depending on where they’re cast. That is at tension with a modern democratic sensibility of counting all votes equally.”

To say the 2016 general election was undemocratic may seem counter-intuitive. The people voted in free elections. No one was coerced with threats or bribes. As far as we know, there were no instances of mass vote fixing or voter fraud.

While the election was technically democratic in that sense, it seems much less so when one considers actual democratic ideals.

The 2016 general election, in which racial issues, tensions and resentments played a major role, was the first in over 50 years without the full protections of the Voting Rights Act.

The Nation’s Ari Berman called it the “most undercovered story of 2016,” noting that there were 868 fewer places to vote in affected states, leading to long lines, as well as cutbacks on early voting.

In 2012, when the VRA protections were still in place and fewer states had restrictive voter ID laws, an estimated 730,000 voters were deterred from voting by long lines and wait times. Blacks and Latinos also faced longer wait times than whites.

Investigative reporter Greg Palast uncovered documents from the government’s Crosscheck program that suggested as many as a million people were purged from voting roles based on flawed information (below).

Additionally, over 6 million people were barred from voting because of felony disenfranchisement. This punishment was historically used, in the words of one South Carolina legislator, to “deprive every colored man of their right of citizenship.”

Imagine how different the results in the sunshine state could’ve been, based on this passage from PBS:

In Florida, once a Confederate state that now has some of the strictest voting rights policies, one in every four black people are disenfranchised, among one of the highest ratios in the nation, according to The Sentencing Project.

It also has the most disenfranchised voters — about 1.6 million, with one-third of them black — and is a state where Clinton needed approximately 120,000 more votes to win its 29 electoral votes.

Democracy entails more than just voting too. There’s a little thing called an “informed electorate” that’s critical to “the people” being able to make informed decisions in their own interest.

I don’t need to go over political polarization and the role that (social) media echo chambers play; we all live this every day.

Less than a month before the election, Gallup found that Americans’ trust in the media had fallen to its lowest level in the poll’s history. Less than a third of respondents had a “great deal” or “fair amount” of faith in the press.

Media professionals have written unendingly about how they failed during the primary season and run up to the election. (you can read them for yourself here: Poynter, NPR, the New Republic, HuffPo, The New York Times)

These issues are not emblematic of a healthy democracy. And, counter to what Trump spent the last several months warning his supporters of, these flaws in the system mostly hurt Democrats, not Republicans.

Lawful Neutral

Then there’s the hedging argument:

The Republicans control Congress. At a time when Americans have almost never been more polarized, it may be best to have a Democratic president to allow for checks and balances between the branches of government. With a Republican in the White House, the GOP will have majority control of the executive, Supreme Court and both chambers of Congress.

In that scenario liberals, Democrats and many minority groups will not only harden their opposition against the ruling party, but they can no doubt expect to be targeted by it as well.

Rolling Stone’s Matt Taibbi wrote after the election:

[Trump] takes office at a time when the chief executive is vastly more powerful than ever before, with nearly unlimited authority to investigate, surveil, torture and assassinate foreigners and even U.S. citizens — powers that didn’t seem to trouble people much when they were granted to Barack Obama.

It was partisan for Obama’s supporters not to question the NSA’s mass surveillance or extrajudicial assassinations under his watch. But it’s objectively more dangerous to have a Republican, especially one as unhinged as Donald Trump, at the helm of these programs, without a powerful adversarial force to keep them in check at a basic level.

https://giphy.com/gifs/lady-gaga-B0rYW9HZTQlGg

Donald Trump has demonstrated his level of restraint: basically, none. To any reasonable person, the choice is clear: a very high probability of vast government overreach, the trampling of civil liberties and due process and the expansion of the surveillance state; or a state of more or less what we’ve experienced for most of the last eight years: the executive and legislative don’t get along, nothing really gets done, but everything looks much less dystopian.

The electoral college needs to sacrifice itself to save democracy

In the Wisconsin Law Review, Professor Stephen M. Shepard defended the idea of the faithless elector, writing:

an event may occur or a revelation may be reliably made such that an elector’s reasonable expectations are in fact frustrated so considerably that the elector cannot in good conscience make good on the commitment to vote for a given candidate and still believe that the elector has performed the office for the good of the country. In such a case the elector cannot be morally bound to the commitment to a given candidate. If the elector cannot morally be bound to the commitment, then reliance on the customary expectation of a commitment would clearly be misplaced, and the fundamental basis by which the Supreme Court has upheld a state requirement of such a commitment would fail.

A (constitutionally-protected) mutiny on the part of a few dozen electors would most likely demonstrate that the electoral college is a flawed, potentially undemocratic way to chose our presidents. Voters would demand to either get rid the electoral college altogether via constitutional amendment or to bind the electors to their constituencies’ vote via legislation or a Supreme Court ruling.

Either way, it’s functionality would be pulled into question, and at the very least, a loophole — that will otherwise continue to be a threat to Democrats, liberals and others as well — will be closed.

Put another way, the electoral college is a nonsensical tool originally created to empower racists. If this loophole exists, why not take advantage of it to highlight how absurd the whole thing is? The electoral college’s final act could be to put a dent into the legacy of racism it was spawned by.


Former Attorney General Eric Holder advocated for abolishing the electoral college system on “Real Time” on Saturday (starts at 18:54).

https://youtu.be/J2OUDxq11no?t=18m54s


*The upcoming lawsuit against Trump University may be the only chance the president-elect has of becoming embroiled in a scandal (with real legal implications) before he’s sworn in. His lawyers, however, are pushing to delay the trial set for the end of the month until after Jan. 21.

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