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Nothing in the Constitution Stands in the Way of Dumping Trump in the Electoral College

Will Republicans in the Electoral College utilize the safety valve written into this country’s founding documents?

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In the month since the election, Donald Trump has demonstrated loudly and clearly that he plans to rule based on blatant disregard for the Constitution and the rule of law. Pressure on the Electoral College could keep him out of the Oval Office. But the clock is ticking.

We learned last week that the CIA believes Russia actively aided Trump in his run for the White House. Equally worrisome, Rex Tillerson, an oil executive whom Trump referred to as having “massive deals in Russia,” has been named Secretary of State. Tillerson negotiated a business deal with Putin in 2011 that could eventually be worth $500 billion. “I don’t know what Mr. Tillerson’s relationship with Vladimir Putin was, but I’ll tell you it is a matter of concern to me,” Sen. John McCain (R-Arizona) said during an interview with Fox News on Saturday.

If the American people had the ability to directly vote for the president, then we wouldn’t be in this mess. Secretary Hillary Clinton’s popular vote lead is now over 2.8 million votes. However, since we are stuck with the electoral college for now, electors will be meeting in their state capitols on December 19 to formally vote for the next president of the United States. According to both the text and the meaning of the Constitution, these electors may vote for anyone they choose. The only thing preventing them from casting their ballots for somebody more qualified than Donald Trump is custom and tradition.

Congressman David Cicilline (D-Rhode Island) has encouraged the Electoral College to consider foreign influence in the election when casting their votes. Congressman Jim Himes (D-Connecticut), who serves on the House Intelligence Committee, tweeted: “We’re 5 wks from Inauguration & the President Elect is completely unhinged. The electoral college must do what it was designed for.” The Hamilton Electors have pledged to choose a compromise Republican candidate in place of Donald Trump or Hillary Clinton. Harvard Law professor Larry Lessig says that he has heard from 20 Republican electors who are considering not voting for Trump. But can the Electoral College actually vote someone else into office?

The US Constitution describes the workings of the Electoral College in the most basic terms. It reads:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President … they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall … transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

When the Constitution lacks for specifics, the Supreme Court and centuries of legal scholars have turned to the Federalist Papers for guidance. Written by Alexander Hamilton, James Madison and John Jay, the Federalist Papers presented an argument for the Constitution by explaining its various provisions.

Hamilton himself penned Federalist 68, The Mode of Electing the President, to explain the reasons for the Electoral College’s existence. He wrote, “The immediate election should be made by men most capable of analyzing the qualities adapted to the station (of President)” because:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?… The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union.

In other words, foreign powers may try to influence our government through scandal and corruption, but the Electoral College will ensure no President shall be selected that is susceptible to such influence, even if he puts on a good show.

Two things are clear from these documents: 1.) nothing says that electors are bound to vote for the candidate selected by their state’s popular vote, and 2.) a primary reason the Electoral College exists is to defend our country against foreign influence upon unscrupulous politicians.

Of course, these aren’t the only historical justifications for the Electoral College. As various scholars have pointed out, the Electoral College was created in part for the preservation of slavery and continues to preserve inequalities.

But today, we have an opportunity to pragmatically utilize the Electoral College to protect all of our constitutional rights, rather than to undermine them. People from across the political spectrum are increasingly finding common ground in the idea that we now find ourselves in the midst of the very emergency Hamilton foresaw when he wrote Federalist 68. According to our nation’s intelligence agencies, Russia has directly interfered in our presidential contest, and Donald Trump is unable to even acknowledge the threat this poses to our national security and our democracy.

Ten electors, nine Democrats and one Republican, have already joined this effort. Thirty-six more Republicans are needed to keep Trump out of the White House.

If Democratic electors announce their support now for a compromise Republican candidate for president, their declarations will make it clear to Republicans that they are ready to set aside policy differences and support a reasonable conservative leader. Will Republican electors follow suit and utilize the safety valve the founders wrote into America’s establishing documents?

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