Donald Trump Officially the President-Elect

The 2016 Presidential Elections are officially over. President-Elect-Presumptive Donald J. Trump has become the President-Elect after a vote of the Electoral College. What has, at least for the past 100 years, been a rubber stamp to the votes of the States became a media-created-sensation over the past month since Election Day when voters handed Donald Trump a surprise win.

The role of the Electoral College is pretty simple: they meet in their State capitals on the same day and pick the President. There are 538 of them. This number represents 435 members of the House of Representatives, 100 Senators, and three electors from the District of Columbia. The vote of the Electors is the actual, Constitutionally significant, vote for President.

Elections in the United States, even for Federal offices, are exercises of State power. All of the States have agreed that a popular vote should be used for the allocation of electors in each State. As we saw in 2000 and 2016, sometimes the national popular vote and the electoral vote doesn’t match. This is largely an issue of proportional representation that hearkens all the way back to the compromises made at the Constitutional Convention. Basically, the way our nation is set up, we endeavor to give every state a voice in how the country is governed. While this gives a bit of outsized-influence to Montana and reduced voice to Texas and California, the vast majority of the States have a say proportionate to one another.

Regardless of what some critical voice might think, the “national popular vote” model of selecting a President doesn’t make sense in the context of republican government (that is: people select representatives to govern on their behalf). Without delving too deeply into American history, the concept that the States retain a degree of their sovereignty is a core of our political identity. Certainly the information age has encouraged what we’d call “direct democracy” (text your vote in to see who will win American Idol, etc.). We have seen the American Presidency become increasingly democratized (being able to reach everyone, everywhere with Twitter, Facebook, targeting, etc.). However, the institutions of American government are arranged in such a way that prospective candidates for the nation’s highest office need to be a representative of a majority of the States.

While the implementation of the system may not be the best manifestation of majoritarian politics, it’s likely a better expression of national issues. For instance, a national popular vote would, necessarily, require candidates for President to spend their time, principally, in major population centers like New York, Chicago, and Los Angeles. The concerns of urban citizens, then, would be the front-and-center concerns for Presidential candidates. In effect, rather than having a President, you’d have a “national mayor.”

Now, we’ve seen that states like Iowa, and the issues facing Iowans, have a disproportionate impact on the primaries. We all know every politician’s stance on ethanol subsidies and have seen them admiring butter sculptures at the Iowa State Fair. However, there is a different between primary elections, which are purely functions of State political parties, and the General Election. In the event the General Election were to be a plebiscite-type national vote, the campaign for the Election would strongly resemble those early days in Iowa. Candidates would neglect, or wholly disregard “flyover” America and focus their attentions on maximizing urban votes and addressing urban concerns.

With regard to “faithless electors,” they are, paradoxically both an expression of the increased democratic sentiment of our time but also a reminder of the quasi-sacred expression of republican principles inherent in our system. Here’s how that works: from a democratization standpoint, we understand why a lot of the electors in this election are complaining. As we’ve addressed, above, some loud voices are trying to move our country to a national popular vote. While this would take a Constitutional Amendment, these voices are more doing what they can to delegitimize the election of Donald Trump than to move for an active change in the system. However, by reminding Americans of the republican virtue of the Electoral College, the complaining voices are actually reminding us of the real core of American civic virtue. We are not a direct democracy and the Electoral College is the appropriate expression of the confluence of democratic ideals and republican principles.

Moreover, putting the media spotlight on the Electoral College, while certainly over-hyped and intruding on the private lives of 538 ordinary citizens, also opens up the wholly appropriate republican conversation about whether an Elector could “faithlessly” go against the popular vote of the State. This issue hasn’t been challenged in Court despite there being laws on the books in nearly half of the States that establish some criminal penalty for Electors being “faithless.” As we mentioned, the binding of Electors is the prerogative of the States. Two states, Maine and Nebraska, bind their electors based on the popular vote in particular Congressional districts. All of the other States select their Electors based on a winner-take-all model. While it would cause an uproar, it would be within the bounds of the Constitution for a State legislate that its Electors would be selected by the State Assembly or even, potentially, by the Governor of the State. We’ve seen that States have wide latitude in regulating their elections.

So, when should an Elector behave faithlessly? This is the interesting hypothetical that many on the left have brought up during the past month. They allege that Mr. Trump is fundamentally unfit for the Presidency and that Republican electors should vote for someone else (as a side note, if there was this sort of mass-defection, the House of Representatives has the power to pick the President from among the top-three vote-getters in the Electoral College and requires an absolute-majority of the States. As it stands now, there are more-than-enough Republican delegations to pick a Republican President. The overwhelming likelihood would have been that the House would have simply picked Mr. Trump). Though this was merely a partisan attack on Mr. Trump, it remains an interesting thought experiment. Certainly, we have to think that Electors should behave “faithlessly” in the event of the death or incapacitation of the person selected by the voters a month before (though, there does not seem to be a Constitutional remedy if the President-Elect were to die or become incapacitated between the vote of the Electors and his Inauguration). Beyond that, given the binding laws in the States, the Electors function more as a ceremonial re-ratification of States’ rights rather than as a deliberatory body.

In the end, the Electoral College and the Republic functioned the way it was supposed to and Mr. Trump officially is the “President Elect.”

Matt McDaniel

Attorney and Political Commentator

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