Trump Cases and the Electoral College

[Doc_Brown]

I had an interesting thought today. Setting aside questions of whether Trump is guilty and of how serious his actions were, what is the potential fallout of the precedents being set? I'm sure Confed or one of the other regulars might be happy to jump in here to talk about the use of the judicial system against political rivals and what that might look like down the road, but again, not the direction I want to go. I'm actually interested in one of the particular allegations against Trump, viz. the allegation that he tried to get a different set of electors sent from a state than was actually selected by the people of that state.

Now, a lot is being made of this, and the claims are that it subverts democracy, is an attack on the country, and so on. There is a long history of protests against slates of electors. There have been Democratic Representatives protesting slates of electors in every election a Republican was elected president this century. There is certainly an argument to be made that Trump went too far in these protests, but I am concerned that the legal precedents being set now will quash legitimate political protest in the future.

Even more interesting though is the potential impact on the electoral college. For those not intimately familiar with the US political structure, the founders of this country set it up more as a tight coalition of individual states rather than a united people under a strong federal government. In same ways, the US might be better compared to the EU as a whole than to an individual European country. The US was set up as a Republic rather than as a true democracy, and the intention was to give a voice both to the will of the citizens at-large, as well as to that of the state interests (as determined by the various state governments). Constitutionally, the citizens of the US do not vote directly for a president. They vote for "electors" in a manner determined by the individual states. The electors then choose the president. Each state is to select a number of electors equal to the number of the state's congressional representatives and senators. Since each state gets at least 1 representative and 2 senators, the smallest states get a somewhat disproportionate voice in the presidential elections.

Here's where it gets especially interesting. The Constitution assigns the state governments the responsibility of determining how to allocate those electors. Some states give the entire slate of electors to the winner of the at-large vote, while others assign them in a somewhat proportional manner. In theory, a state legislature could simply state that the electors from that state would be assigned to a particular party or candidate regardless of the vote of the people (I say in theory, as there would be legitimate constitutional challenges, especially if the process was changed in the middle of an election). A number of states have been using this freedom to essentially subvert the concept of the electoral college. Specifically, there is a National Popular Vote (NaPoVo) initiative, which takes effect once states controlling more than 50% of the electoral votes have signed on. The electoral college is an agreement among the legislatures to submit a slate of electors based on the national popular vote regardless of who the people within the state vote for.

The question is, if a precedent is set in the case against Trump making it a serious crime to attempt to change the slate of electors submitted by a state, will that adversely affect the NaPoVo initiative? I can see quite a few arguments for both sides. Certainly, if the NaPoVo ever went into effect, it was going to be challenged in court, but I strongly suspect the legal arguments being made against Trump now will show up against the NaPoVo in the Supreme Court if it ever comes down to that.

[jusplay4fun]

Here is a point that is overlooked:

The Electoral College in 2024
The Electoral College will follow this schedule for the 2024 presidential election:

Spring and Summer 2024, Nomination of Electors: The political parties in each state nominate their electors. Parties and states have different processes, but a party’s presidential electors are generally loyal or consistent party members. The parties want to be confident that, if selected, their electors will cast their votes for the party’s nominee for president.
https://www.ncsl.org/elections-and-campaigns/the-electoral-college

[Dukasaur]

Interesting points, Doc.

My perspective is this: The framers of the Constitution could have made it easy and had the President selected by the Congress. They went through this cumbersome route, I think, to try to create a non-partisan body. The idea was that the Electors, serving essentially for only one day, would be a position not attractive to career politicians and would be sought out by people of good judgement chosen by their neighbours: local merchants, apothecaries, etc. It was a well-intended idea but flopped completely: it didn't take long for the state legislatures to subvert the process and make the Electors mere tools of their political machines.

There really is no good way out. Switching to something more based on the popular vote really doesn't help, since the political parties control the discourse and in modern times no Independent has a snowball's chance in hell.

If I was writing a Constitution for a country, I would include an oath to all elected officials that they will serve only Constituents and Conscience, and never any political party or other organization. Either vote exactly according to the will of your constituents, or vote your conscience, but never vote according to the dictates of some organization you have joined. Political parties could exist, but would be utterly defanged.

Of course, my idea has about as much chance of ever being adopted anywhere as an Independent has of becoming President, but for what it's worth, I see it as the only good option.

[Pack Rat]

50 + 1

Get rid of the Electoral College.

Let Americans personally vote for the candidate of their choosing.

[jusplay4fun]

50 + 1

Get rid of the Electoral College.

Let Americans personally vote for the candidate of their choosing.

There are OTHER reasons than what has been stated here (in this thread) so far. A big intent was to protect small states and less populous areas from being dominated in the elections, as it would be if it were straight popular votes.

[Pack Rat]

"If I was writing a Constitution for a country, I would include an oath to all elected officials that they will serve only Constituents and Conscience, and never any political party or other organization. Either vote exactly according to the will of your constituents, or vote your conscience, but never vote according to the dictates of some organization you have joined. Political parties could exist, but would be utterly defanged."

Dukasaur,
Having our Legislators give an oath to change their loyalties and promise to represent their district or state citizens and not to their contributors is laughable.
Are you adding Finance Reform to your platform and elimination of party affiliation?

[Pack Rat]

50 + 1

Get rid of the Electoral College.

Let Americans personally vote for the candidate of their choosing.

There are OTHER reasons than what has been stated here (in this thread) so far. A big intent was to protect small states and less populous areas from being dominated in the elections, as it would be if it were straight popular votes.

Are you saying that majority rule is oppressive? Our founding fathers wanted a United States of America at that time...sort of a bribe to make sure all 13 States joined the Union. You would call it a compromise.

[jusplay4fun]

More on Electoral College:

What is the Electoral College?
The Electoral College is a process, not a place. The Founding Fathers established it in the Constitution, in part, as a compromise between the election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens.

What is the process?
The Electoral College process consists of the selection of the electors, the meeting of the electors where they vote for President and Vice President, and the counting of the electoral votes by Congress.

How many electors are there? How are they distributed among the States?
The Electoral College consists of 538 electors. A majority of 270 electoral votes is required to elect the President. Your State has the same number of electors as it does Members in its Congressional delegation: one for each Member in the House of Representatives plus two Senators

https://www.archives.gov/electoral-college/about#:~:text=The%20Electoral%20College%20is%20a,popular%20vote%20of%20qualified%20citizens.

Five times in history, presidential candidates have won the popular vote but lost the Electoral College. This has led some to question why Americans use this system to elect their presidents in the first place.

Among the many thorny questions debated by the delegates to the 1787 Constitutional Convention, one of the hardest to resolve was how to elect the president. The Founding Fathers debated for months, with some arguing that Congress should pick the president and others insistent on a democratic popular vote.

Their compromise is known as the Electoral College.

https://www.history.com/news/electoral-college-founding-fathers-constitutional-convention

and one more article, to read, if you wish:
https://www.governing.com/context/the-electoral-college-explained-its-history-and-the-tensions-of-democracy.html

[Dukasaur]

"If I was writing a Constitution for a country, I would include an oath to all elected officials that they will serve only Constituents and Conscience, and never any political party or other organization. Either vote exactly according to the will of your constituents, or vote your conscience, but never vote according to the dictates of some organization you have joined. Political parties could exist, but would be utterly defanged."

Dukasaur,
Having our Legislators give an oath to change their loyalties and promise to represent their district or state citizens and not to their contributors is laughable.
Are you adding Finance Reform to your platform and elimination of party affiliation?

I think a nation where the political parties were largely irrelevant would have much less room for special interest groups in general. Large donors would not be without influence, but it would have a lot less leverage.

[riskllama]

I want to live in Dukastan.

[jusplay4fun]

50 + 1

Get rid of the Electoral College.

Let Americans personally vote for the candidate of their choosing.

There are OTHER reasons than what has been stated here (in this thread) so far. A big intent was to protect small states and less populous areas from being dominated in the elections, as it would be if it were straight popular votes.

Are you saying that majority rule is oppressive? Our founding fathers wanted a United States of America at that time...sort of a bribe to make sure all 13 States joined the Union. You would call it a compromise.

The history of the US is marked by Compromise, and the Electoral College is another example of this. Also, as the first real democracy, this was ALL new. Compromise was really the correct path forward as we tried to figure these things out, like how to elect a chief executive (now the POTUS) and other aspects of our Constitution to replace the weak central government of the Articles of Confederation. Many people forget that this notion of democracy had not really been tried before as a means of governing a people and a nation.

[Doc_Brown]

Here are a few of my practical concerns with a direct democratic election of the president:
1. It's much more susceptible to vote manipulation. As it stands now, someone wishing to ensure that a specific candidate would be elected (assuming the election is looking to be close) will have to be active in several states with close election, since it's impossible to predict a priori which state will actually be the tipping point. In a straight democratic election, all that is required is to change the vote count in a couple precincts of a single large city.
2. It increases the power of media (both traditional and social) to manipulate the vote. The majority of the electorate doesn't spend a lot of time researching candidates, and they frequently are swayed by a couple short soundbites or video clips. Let's be honest, even if you consider yourself fairly politically savvy, how much time did you spend looking into the positions of your state representative candidates or the people running for state auditor or secretary of state? Those are the people that interpret and decide local election laws, but if you made your choice based on the first hits it Google or based on a single news story you happened to come across, you are fully susceptible to manipulation!
3. The debates are a farce. Go back and read the transcripts of debates held 100 years ago or more. Candidates were arguing substantive issues rather than trying to score soundbites. After the debates, no one that listened walks away thinking that they have been convinced of a position on a particular issue. They walk away thinking about who scored the best zinger on their opponent.
4. Third party candidates have no chance in the current structure.

My "king for a day" approach to improving the electoral system would actually be to double-down on the electoral college, but in a way that, I think, fixes some of these issues as well as the concerns about small states having undue influence. My working assumption is that amending the constitution is not possible at this time.
First, I would increase the number of congressmen by a factor of at least 5. Currently, we have one congressman (and consequently one elector) for every roughly 800,000 people. I would try to target something like 1 US Representative for every 100,000 people. That will result in somewhere in the neighborhood of 3000 Representatives (which is going to result in some other interesting dynamics, but I'm just thinking about the electoral process here at the moment) and ~3100 electors (since each state sends a number of electors equal to its number of representatives and senators).
Second, all electors would be completely unbound. Each state would hold non-partisan local elections for the electors only, without regard to candidate or party. The elector must reside in the electoral district he/she represents. Citizens would run against each other, not on the basis of which presidential candidate they support, but on the basis of values they hold and deem important for their community.
Third, presidential candidates do not announce their candidacy in advance of the elector selection votes. Presidential candidates don't run around the country campaigning. They announce their candidacy at a week long electoral convention held in DC, at which all of the electors meet and interact with them. The candidates would have time to present their own platforms, debate each other, and meet one-on-one with electors. At the end of the week, the electors vote to chose the president and vice president.
Possible fourth, (to really upset the status quo!) the president and vice president must be chosen from among the electors. This could make for some interesting re-election dynamics (imagine Biden having to convince 100,000 people in Delaware or Trump having to convince 100,000 people in Palm Beach, FL to send him to the electoral convention!), though there is a lot of room for corruption here as well.

Anyway, there are lots of problems with all of this, not least of which being that those that control the current political processes would never let this happen. But it's fun to imagine anyway!

[saxitoxin]

Agree with Doc Brown, but also, direct popular vote for a president would only work if there were a federal elections agency like in Canada.

The U.S. has no federal elections agency, each state runs federal elections within its own borders according to laws it establishes. Once you apply that system in an election that crosses state lines, an arms race will develop. Soon, California will drop its legal voting age to 15 to increase the number of Democrat votes in the aggregate national total. Then, Mississippi will say every citizen is allowed three votes. And what happens when Wyoming announces the Republican got 99% of the vote? Etc., etc. Any one of those things can happen now but, if they do, they would have zero impact on the ultimate outcome.

The only way you can get rid of the Electoral College without the entire system breaking down within 20 years, is to establish Canadian-style elections. (In Canada, each province runs provincial and local elections. But elections to the House of Commons are run by an entirely separate, federal agency.) But that isn't happening.

[GaryDenton]

Wrong.

[jusplay4fun]

Wrong.

which part? who?

[GaryDenton]

These are arguments against Democracy trying to support the electoral college which gives a big structural advantage to the Republicans now.


It is wrong to write that just voting directly for the presidential ticket is worse on these two points.

It's much more susceptible to vote manipulation.
Now you only need to change a few thousand votes to change the winner. In a normal popular vote election you need to change millions.

It increases the power of media (both traditional and social) to manipulate the vote.
How? You see the complete media bubbles now where people can't agree on the facts or history. How would it get worse?

[Dukasaur]

These are arguments against Democracy trying to support the electoral college which gives a big structural advantage to the Republicans now.


It is wrong to write that just voting directly for the presidential ticket is worse on these two points.

It's much more susceptible to vote manipulation.
Now you only need to change a few thousand votes to change the winner. In a normal popular vote election you need to change millions.

It increases the power of media (both traditional and social) to manipulate the vote.
How? You see the complete media bubbles now where people can't agree on the facts or history. How would it get worse?

The "structural advantage" in intentional and was well-intended. The idea was (and to some degree still is) that the sparsely populated smaller states would, in a pure majority system, be completely drowned out and dominated by the more densely populated region. The bicameral legislature and the electoral college were an attempt to protect people from being ruled by (initially) the interests of Boston, New York, and Richmond.

The fact that this system currently gives a big advantage to the Republicans is coincidental. It's not the constitution's fault that the Democrats have done a piss-poor job of courting Alaskans or Dakotans.

[jusplay4fun]

These are arguments against Democracy trying to support the electoral college which gives a big structural advantage to the Republicans now.


It is wrong to write that just voting directly for the presidential ticket is worse on these two points.

It's much more susceptible to vote manipulation.
Now you only need to change a few thousand votes to change the winner. In a normal popular vote election you need to change millions.

It increases the power of media (both traditional and social) to manipulate the vote.
How? You see the complete media bubbles now where people can't agree on the facts or history. How would it get worse?

The "structural advantage" in intentional and was well-intended. The idea was (and to some degree still is) that the sparsely populated smaller states would, in a pure majority system, be completely drowned out and dominated by the more densely populated region. The bicameral legislature and the electoral college were an attempt to protect people from being ruled by (initially) the interests of Boston, New York, and Richmond.

The fact that this system currently gives a big advantage to the Republicans is coincidental. It's not the constitution's fault that the Democrats have done a piss-poor job of courting Alaskans or Dakotans.

As usual, Duk offers interesting, valid, relevant, and insightful comments.