Electoral College under the gun from anti-Trump forces

01 Dec 2016


Anti-Trump forces are preparing an unprecedented assault on the Electoral College, marked by a wave of lawsuits and an intensive lobbying effort aimed at persuading 37 Republican electors to vote for a candidate other than Donald Trump.

It's a stress-test for an institution that Alexander Hamilton envisioned as a safeguard against popular whims, and a direct challenge to the role of constitutional rubber stamp that the Electoral College has evolved to play in picking the president.

Behind the overt anti-Trump push is, according to Politico, a covert agenda: if the courts establish that individual electors can switch allegiances, supporting candidates other than those who win their states, it would inject so much uncertainty into the process that states may be willing to junk the Electoral College in favour of a popular-vote winner.

''There might well be a clamour to get rid of the Electoral College altogether, a move that would have some disadvantages (like eliminating Hamilton's safeguard) but many advantages as well,'' wrote Laurence Tribe, a constitutional law professor at Harvard University, in an email. ''Anyhow, clamour and anger have become par for the course in this loony election year.''

Leaders of the effort, mainly Democrats, have plans to challenge laws in the 29 states that force electors to support their party's candidate. Those laws have never been tested, leaving some constitutional experts to argue they're in conflict with the founders' intention to establish a body that can evaluate the fitness of candidates for office and vote accordingly.

Several sources involved with the legal planning also confirmed that they're preparing to roll out a coalition of lawyers prepared to defend, pro bono, any electors who vote in opposition to their party's candidate on 19 December, when the Electoral College meets to cast the official vote for president.

Those efforts are parallel to a drive by at least eight Democratic electors in Colorado and Washington state who are lobbying their GOP counterparts to reject their oaths - and in some cases, state law - to oppose Trump when it comes time to cast their votes.

Electoral College vs popular vote
Because Trump won the popular vote in states making up 306 electoral votes, he would be well over the 270-vote majority he needs to become president if all of those electors vote for him. That's why his detractors are seeking 37 Republican defections - just enough to keep Trump below the threshold, which would send the final decision to the House of Representatives.

The below-the-radar campaign to encourage and organize those so-called faithless electors has largely been ignored by Trump and his team. But if even a handful of Republican electors join their long-shot effort - they already claim to have one firm commitment and have made contact with a slew of others - it would raise alarms by disenfranchising millions of voters and invariably fuel a renewed look at the Electoral College's place in the modern era.

''I am tracking it intensely,'' said Trump confidant Roger Stone in an email, though he said he's convinced the effort will fail. ''The dying gasp of the established order.''

The electors spearheading the effort, like Colorado's Polly Baca and Washington state's Bret Chiafalo, say they aren't explicitly attempting to unravel the Electoral College. They argue that they're merely returning it to its historic function as a safety valve in the event voters choose an unfit president. But they wouldn't mind if radical reform is one of the byproducts of their work.

 ''I have always believed we should have a national popular vote. That's been my position now for decades,'' said Baca, who's helping lead Hamilton Electors, the Democrat-led group lobbying Republican electors to oppose Trump.

Already, Democrats frustrated that Clinton won the national popular vote - by more than 2.2 million as of Monday - only to lose the Electoral College, are offering legislation to amend the Constitution and abolish it altogether. But advocates for a more modest, bipartisan solution - a statewide compact to elect the president by popular vote - say the renewed attention to the drawbacks of the Electoral College could help their effort.

''I think it helps in a sense that it's raising the consciousness of how the Electoral College works,'' said Saul Anuzis, a veteran GOP operative from Michigan who is urging states to join the popular-vote compact.

The compact, which has already won support in 10 Democrat-led states and the District of Columbia, would take effect only if states constituting a majority of the Electoral College sign on. So far, those 11 places add up to just 165 electoral votes.

Anuzis noted that the compact has broader support than just those Democratic states. Several Republican legislative chambers have supported the measure.

Trump himself expressed support for a popular-vote-based system shortly after Election Day, and the president-elect argued he would have campaigned differently - targeting vote-rich states like California and New York - if the election were decided based on popular votes. His views are heartening advocates for the interstate compact.

''Trump's argument is we ought to have a 50-state election. And he believes whoever gets the most votes ought to win,'' Anuzis said. ''Rationally, as a Republican and conservative, you basically want to keep the state powers … it preserves the Electoral College. It doesn't lock us in for life. I think that the state-based compact is a rational one.''

Other experts aren't sure Republicans will have an appetite for a dramatic remaking of the Electoral College so soon after the institution helped ensure Trump's win.

A likelier reform from Republicans, they said, would entail expanding the landscape of state laws binding electors to their states' choices.

''It could be the autonomy of electors is going to come under very close scrutiny,'' said Robert Alexander, an Electoral College expert from Ohio Northern University.

George Edwards, a Texas A&M professor and prominent Electoral College critic, said eliminating electors altogether and making electoral votes simply automatic would be another option Republicans might consider. But he worries it would come at the expense of a broader reform of the institution.

''That could suck the energy out of real reform,'' he said.

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