On December 19, 538 electors will fulfill their Constitutional duty to ratify the results of November’s presidential election. This year could be different.
The college was conceived of by Alexander Hamilton—the namesake of the Broadway smash whose cast ended up engaging with Donald Trump in his first post-election feud—who envisioned the body as one with the power and perhaps the duty if necessary to go against the will of the voters.
The Founding Fathers, not that keen on pure democracy, wanted a backstop should the voters choose unwisely. Hamilton, writing in Federalist 68, warns against letting the office fall into the hands of “any man who is not in an eminent degree endowed with the requisite qualifications.” He cautions against demagogues and autocrats and anyone under the influence of a foreign power—why the Constitution signed the previous year requires presidents to be “natural-born citizens.”
Now, revelations that Russian hacking was intended to help elect Donald Trump, according to the CIA, has left the Electoral College as the only Constitutional roadblock between him and the presidency.
Trump’s vast business interests—111 businesses in 18 countries that we know of—are another red flag, and a possible reason why Trump has delayed announcing his plans to avoid conflicts of interest until the new year and after the Electoral College meets.
“He knows that his business conflicts are irresolvable and therefore any announced plans will be insufficient,” says Alex Boyle, former president of the Chevy Chase Bank and a lifelong Republican until he changed his registration this year.
“So if the Electoral College has officially made him president, there is nothing which can be done but to accept his conflict problems as a given. All very clever,” says Boyle.
Boyle is an unlikely activist. A classmate at Yale and Harvard Business School of incoming Commerce Secretary Wilbur Ross, who once served on his board, he has been a resolute opponent of Trump, penning opinion pieces like one published in the Baltimore Sun in September warning against electing a president with such irresolvable business conflicts.
Even if Trump were so inclined, says Boyle, which he clearly is not, “it would take years to liquidate such a maze of private interests. Here we are just racing toward a brick wall that’s going to hit us.”
Through word of mouth and on social media, Boyle is following an idea launched by a group that calls itself “Hamilton Electors.” Launched by ten electors (nine Democrats, including Christine Pelosi, Nancy Pelosi’s daughter, and one Republican from Texas) they are calling on their fellow electors to follow their conscience and use their judgment to support a compromise candidate. Their website features Mitt Romney, Michael Bloomberg and John Kasich.
The Hamilton Ten have asked for national security briefings about the Russian hacking, highlighting their concern about foreign intervention, a request Clinton campaign chairman John Podesta—a victim of those hacks — backed in a statement, saying the allegations “should distress every American.”
It would take 37 defections among Trump electors to bring Trump to 269, one short of the 270 electoral votes needed. “37 Patriots can save this country,” says the Hamilton Electors web site. Alternatively, the group envisions a scenario where a critical mass of Clinton electors throw their support to Romney, an act so devoid of partisanship that it could draw faithless Trump electors to their side.
“I think we have an obligation to follow this to the end,” says Boyle. “Hamilton’s language is quite clear, and we’re not trying to undo the election and put Hillary in.”
If the electors drove Trump under 270, the election would go to the House. “But it’s more complicated than that,” says Roy Neel, author of “The Electors,” a novel about faithless electors. First the Senate counts the votes, and they don’t do that until a date certain in early January, and any senator can challenge vote-switchers. If the switches are upheld, the contest would then go to the House, where each state delegation gets one vote among the top 3 vote getters in the Electoral College.
There would have to be a “high degree of coordination and collusion,” says Neel, for a third candidate like Romney to emerge in the few days remaining. “It’s not impossible, but highly unlikely.”
Neel was Al Gore’s chief of staff during the vote recount of the 2000 election, and he recalls then GOP Majority Leader Tom DeLay saying the House was never going to allow Al Gore to be president. “They were clearly planning the final firewall for Bush and could have pulled it off if Gore had prevailed in the recount in Florida,” says Neel.
Much the same dynamic applies today. “It’s hard to imagine a Republican House turning to anyone but Donald Trump,” says Jack Pitney, a government professor at Claremont-McKenna College, “unless video emerges of Trump getting his orders from Putin. All of this is great for those of us who teach intro to American politics, but it’s not a serious exercise.”
There are lots of ways the current system is “awful,” says Rob Richie, Executive Director of Fair Vote, but having a bunch of faceless electors suddenly act as free agents to change the results of an election “would throw the nation into utter chaos.”
Richie is a proponent of the Popular Vote Interstate Compact, where states voluntarily pledge to award their electoral votes to the winner of the popular vote. So far, ten blue states and the District of Columbia have joined the Compact. The goal is to recruit enough states to reach the required 270.
In 1969, after close elections in 1968 and 1960, a direct election bill passed the House but fell short of the required two-thirds in the Senate. There hasn’t been much action in the intervening decades, but on Wednesday, a full-page ad in The Washington Post urged “Esteemed Electors” to “place country before party” and block Trump. A web site representing a bipartisan coalition of Americans “including Electors, scholars, officials, and concerned citizens,” provides names and addresses of electors as well as “polite, respectful letters” to send electors asking them to block Trump.
James Michener, the late acclaimed novelist, was a Democratic elector from Pennsylvania for Hubert Humphrey in 1968. He wrote about his experience in “Presidential Lottery: The Reckless Gamble in our Electoral System.” Segregationist Governor George Wallace won several Southern states that year and would have had the balance of power between Humphrey and Richard Nixon if Nixon had lost California. Nixon won it by two percentage points. Michener recounts how Wallace had planned to hold his electors hostage for whichever candidate would roll back civil rights.
The Electoral College is a place where potentially anything can happen, although nothing out of the ordinary ever has. A California law firm, Durie Tangri LLP, is working with Harvard Law professors to provide legal assistance to electors who violate their pledges. While there’s no federal statue, many states have laws prohibiting “faithless electors.”
With Alexander Hamilton beckoning from the grave, and from Broadway, this final curtain call for the 2016 campaign bears watching.