Donald
Trump is not yet the President-elect. Under our constitutional framework,
the Electoral College will select the President next month. Electors
customarily vote the way their state voted. But many states don’t require
that they do so. As pundits have started to point out, a few dozen
“faithless” electors could—lawfully—send Hillary Clinton to the Oval
Office.
This
leads to an apparent puzzle. One of the Electoral College’s purposes, at
least on some accounts, is to provide a check against charismatic
demagogues. For many months now, civic-minded critics have called Trump a
fascist, a white supremacist, a sexual predator, a pawn of Putin, “a one-man
constitutional crisis,” and “an extinction-level event” for liberal
democracy. Both Clinton and President Obama have insisted that Trump is
“uniquely unqualified” to be President. Clinton, moreover, received the
most votes nationwide, and she might have done a good deal better if not for
Republican-led voter suppression.
Critics
have a variety of grounds, then, for challenging the legitimacy of a Trump
presidency, and in the Electoral College they have a constitutional tool that
might derail it. Yet no public officeholders have even raised the
possibility. Why the reticence?
There
are some obvious concerns. It would be exceedingly difficult to engineer
an Electoral College bailout. If it could be done, millions of Trump
supporters would feel cheated by the “rigged” system that Trump has denounced
all year. Violent protests could well erupt.
As
weighty as these concerns are, they don’t necessarily solve the puzzle.
Clinton, after all, won the popular vote, leaving her supporters feeling
cheated. If switching to Clinton would nonetheless be unrealistic or
unwise, progressives could join with conservatives to find a Republican capable
of siphoning enough votes from Trump to deprive him of an Electoral College
majority and throw the race into the House, which could then elect this other
Republican. And if a true fascist is on the verge of taking power and the
opposition has a lawful means to head him off, even one that might fail or
backfire, doesn’t the opposition have a duty to try?
Political
judgment is complex, and it is easy to second-guess from the outside. The
Democratic Party leaders and the “Never Trumpers” in Congress may be right to
hold back. Even still, the fact that they so immediately and decisively
abandoned the Electoral College suggests a couple of awkward lessons.
The
first is that these officials do not fully believe their own apocalyptic
rhetoric about Trump. He may be a demagogue, but they doubt his ultimate
desire or ability to shatter our system of government. Never Trump, we
can now see, was more of an aspiration than a commitment. Because again,
if you truly believe that someone poses an existential threat to democracy, you
do not accept his claim to the White House—and normalize his coming presidency—without
attempting an appeal to the final gatekeepers, imploring them to keep faith
with their country, Constitution, and conscience rather than a local voting
majority. (As part of any Electoral College bailout strategy, the
vocabulary of “faithless” electors would need to be resisted.)
The
second lesson is that the Democratic and Republican parties are now divided not
only on what they think the Constitution means but also on how they engage in
constitutional conflict. The Republicans are bolder. Asking electors
to reject their state’s winner would unsettle a longstanding norm, which is a
serious step in a polity that depends on such unwritten traditions. But
congressional Republicans have not hesitated to flout numerous conventions of
constitutional government in an all-out effort to sabotage the Obama
presidency, from threatening to default on the national debt to using the
filibuster as a routine tactic to refusing to give a Supreme Court nominee a
hearing.
Trump
himself has participated in this destructive project, urging Senate Republicans
to stonewall the Merrick Garland nomination and promoting the false claim that
Obama’s birthplace makes him constitutionally ineligible to be President.
Trump of course also refused to pledge that he would accept the results of the
election, should Clinton have prevailed.
Democratic
and Republican officials have both done plenty of unsavory things in recent
times. But as the events of the past week reveal, a gulf has opened up
between the two parties in their willingness to resort to technically lawful
yet extreme measures to combat what is seen as an unacceptable outcome.
Democrats, by and large, have been more beholden to a model of traditional
legal process. They have been less willing to play constitutional
hardball.
The
refusal to play hardball reflects a restraint that is admirable, indeed
essential, in ordinary times. But it can also amount to unilateral
disarmament in a genuine moment of crisis.
Here,
at least, it misses an opportunity not just to challenge Trumpism but also to
force a bipartisan conversation that is long overdue—about whether the
Electoral College is justifiable in the first place. An aggressive appeal
to the electors would have risked inviting tit-for-tat retaliation by future
candidates, destabilizing our system of elections and galvanizing reform
efforts. Given the Electoral College’s deep democratic flaws, that
prospect is hopeful as well as terrifying.