Could Bush v. Gore Save America?

Visitors enter the U.S. Supreme Court in Washington, U.S. October 5, 2016. REUTERS/Gary Cameron
Visitors enter the U.S. Supreme Court in Washington, U.S. October 5, 2016. REUTERS/Gary Cameron

It takes no formal study to demonstrate that the electoral college is unpopular with Americans. Criticisms began at least as early as 1824, when Andrew Jackson won the popular vote but only a plurality in the electoral college. The House of Representatives then selected John Quincy Adams to be president, causing Jackson to rage that the people should choose, not the electoral college. Jackson won revenge victories in 1828 and 1832, but the electoral college never claimed the people's favor.

It is cumbersome, confusing, misleading to people everywhere, and irrational in the sense that it can award victory to the loser of the popular vote. It did so in 1876 and again in 1888. It performed well for more than a century after that, not denying victory again to the popular vote winner until 2000.

Now, however, a mere sixteen years after that fiasco, the electoral college again misbehaves. Although observers pontificate about the "voice of the people," and argue that "the people have spoken," by electing Donald Trump, just how loud was that "people's voice"? It was not even a whisper. Roughly 400,000 more people voted for Clinton than for Trump.

So the Democrats really were not guilty of disregarding "the interests of everyday white people" to the country's detriment. A mere glance at the Democratic platform demonstrates that it did not neglect jobs, high education costs, and other concerns of most Americans. It even called for the expansion of Social Security. Already the victorious Republicans plan to dismantle Medicare, to reject taxes on the wealthy as "class warfare," and to repeal health care. So much for the Republicans' "populist appeals"

There are signs of "clear and present danger." Donald Trump has engaged in behavior and rhetoric that appalls all but the most fervid supporter, and has connections with foreign powers that meddled in the election, complemented by the FBI.

Electors meet in their respective state capitals, and cast their votes on the first Monday after the second Wednesday in December; in 2016 that falls on the 19th. The chances of Trump alienating his followers between now and then are tiny (as he said, he could shoot someone on 5th Avenue and not lose a vote), but given his past, such a thing is possible. Also possible are additional legal issues emerging before then, to add to his already tarred record that, among other things, will require him to appear in court to defend himself against charges of fraud. John Cassidy, in the New Yorker said months ago, that "If the revelations about Trump University don't do any damage to Trump, it's time to worry--or worry even more--about American democracy."

If some major issue were to emerge prior to 19 December, it might not be too late to change the outcome. This may be so even if some state legislatures were simply to begin to suffer from buyers' remorse (as many British voters are said to be experiencing as a result of their Brexit votes), after reviewing Mr. Trump's record and finding that it suggests that having him as president of the United States would present an existential danger. If the legislatures of Wisconsin, Pennsylvania, and Michigan for example were to shift their electoral votes away from Trump to Clinton, she would win. If enough red states were simply to withhold their electoral votes, and not cast them, the total vote could be reduced enough that Clinton's total would represent more than half the votes cast, and she would be the winner.

Technically, this might be possible. The Supreme Court in Bush v. Gore said: "The individual citizen has no federal constitutional right to vote for electors for the president of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College." Moreover, continued the Court, "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself." Once having chosen a method for selecting electors, "the state, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors."

An objection could be that Congress sets the date for election, or for choosing electors. This year, the date was 8 November. That might not deprive the state's legislature of the power to change its collective mind, though, consistent with the statement above. In fact, in 2000 the State of Florida almost did just that. After the election, and before the US Supreme Court handed down Bush v. Gore, Republicans in the legislature planned to choose Bush/Cheney electors, regardless of the result of any recount. USA Today reported as much on 12 December 2002. It did not come to pass because of the Court's decision the next day made it unnecessary.

Of course, the legislatures of Michigan, Pennsylvania, and Wisconsin--along with those of Kentucky and Florida--are all dominated by Republicans. Surely, no reasonable Republican would vote to deny the selection of his party's nominee to the presidency. On the other hand, most Americans, regardless of party, and most American officeholders, regardless of party, at bottom are patriotic, and wish to do what is best for the country. If they truly scrutinize the record and conclude that the potential damage from a Trump presidency actually does represent a threat to America's people, their own party included, one could imagine that they could cast political considerations aside, and vote their conscience. When President Andrew Johnson was being tried following his impeachment, a number of his enemies, Republican senators, concluded that removing a president from office would endanger the institution, however much Johnson deserved it. The Senate failed to produce the required two-thirds vote for conviction. If enough legislators were to decide that a Trump presidency is too dangerous to be permitted, they may still have the power to exercise their collective consciences, and head it off.