So Three Framers Walk Into a Bar

The ghosts of James Madison, Alexander Hamilton, and John Jay, the erstwhile authors of The Federalist Papers, walk into New York’s historic White Horse Tavern. They express concern, but not surprise, at the election of Donald Trump.

Hamilton raises a toast to their joint creation, the Electoral College. “We always knew there was a possibility that the voters would fail and we would need a small group of men, excuse me persons, to filter the public voice to make a more considered and deliberate section.”

“Indeed,” agrees Madison as they clink glasses and take a drink of their ale. “The public’s passion needs to be checked by reason. If ever there was a year that the Electoral College should play the role intended by the Constitution, this is the year and this is the candidate.”

Meanwhile, the Donald Trump presidential transition is proving to be as freewheeling and unpredictable as a presidential candidate that left many Americans disconcerted. As the ghosts of Madison, Hamilton, and Jay remind us though, constitutionally, this election is not over.

Donald Trump can be denied the presidency, and uncomfortable conservatives can effect this outcome. What we describe here will not happen, but it is completely constitutional and speaks to the purpose of an elector system as designed by Madison. Ironically, were it to come to pass, it would most anger those who argue we should strictly adhere to the language of the U.S. Constitution and the intent of the Founding Fathers.

Mr. Trump has three major challenges that exacerbate an effective transition. First, he is a popular minority president, having won a million fewer ballots than his opponent, but staking the claim to a majority of electors. Second, he is not popular. Various measures of approval and evaluation indicate that he does not enjoy the confidence of a majority of the American public. And, finally, real policy differences are reemerging between Trump and both of the major congressional parties.

Policy differences can be overcome by a majoritarian president. Claiming solid majority support grants a mandate to a president, a bully pulpit to take on the legislature. Mr. Trump largely ran behind his party’s legislative candidates, leaving them not beholden to him on issues of contention and difference. Being a minority president does not make Trump illegitimate, but it does make him vulnerable.

The coming electoral calendar plays out this way under the constitution. On December 19, human electors meet in every state’s capitol, and cast a ballot for president and vice-president. Six copies of those ballots are then sealed in six envelopes, with sets being delivered to the president of the U.S. senate, the U.S. archivist (two sets), the chief federal district judge in each state; and a state’s secretary of state (two sets). Then, on January 6, in a joint session of Congress, the president of the senate (Joe Biden) presides over the unsealing and counting of the ballots. A house member and senator can concur to challenge any state’s ballots. Those challenges are resolved by the Congress, who can either ignore the challenge or uphold the challenge and simply not count a state’s votes.

So, how does an Electoral College fix work? It requires a critical mass of electors from Republican states to cast ballots for a Republican other than Mr. Trump. This is highly unlikely. But, faithless electors do happen, and if a sufficient number of electors determine that a Trump presidency is not in the interest of the Republic, they may act accordingly.

The District of Columbia and 29 states have ‘faithless elector’ laws. None of these laws have ever been enforced, but they threaten sanctions as high as $1,000 fine for defying the pledge to vote for the state’s popular winner. The other consequences are socio-political. There would likely be political and possibly violent blowback against widespread acts of electoral faithlessness.

But let’s play this game. What does the math look like? The states with faithless elector laws divide their electors roughly evenly between Clinton and Trump. If 37 electors are peeled off from Trump, and cast for a singular other candidate, such as Mitt Romney, then we enter a new ballgame. Had Hillary Clinton won Washington state, at least one elector from there promised not to vote her, so we are promised one faithless elector in any event.

If Mr. Trump is denied an electoral majority, then the U.S. House convenes, with each state delegation getting one vote, and they pick from the top three electoral vote-getters. At this point, the presidency potentially becomes a bargaining game involving Democratic delegations that support a less colorful, less controversial, more disciplined Republican.

In some states, an electoral poach is highly unlikely. In those states, electors are chosen at party convention. In others, most notably Pennsylvania, the campaigns pick electors, guaranteeing loyalty.

Normally, this option would prove anathema to politicians and the public. Most presidents enjoy a popular plurality or even majority, and also enjoy very high initial approval ratings (the honeymoon). Donald Trump does not enjoy these qualities. And, the divisive post-campaign continues to chip at the same themes of the ante-electoral campaign, of temperament and suitability and trust in the team Trump will assemble and the agenda he might pursue.

Can the elites take one last charge at holding onto political power, by engineering a bolt of 15 percent of Trump’s delegates, joined by a cluster of Clinton’s delegates for bipartisan measure, based on the argument of the interest and health of the Republic? Can they identify a combination of 26 state congressional delegations in the House from among the 19 controlled by Democrats and 31 controlled by the GOP to coalesce behind an un-nominated candidate who had received not a single popular vote?

We don’t know. But we know it is a viable scenario. And, it is quite constitutional.

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