Is the Electoral College a Set of Rules or an Escape Clause?

I posted the other day about the outside chance the Electoral College could decide against validating the Trump election. I’ve heard some rebuttal from very important voices, ones that I respect. Notably this article in the Atlantic. I disagree with them, understanding they know many facts I don't. It’s important to recognize what they are saying. It’s also very unlikely that Electors from those traditionally blue states that went for Trump, even the ones narrowly divided, would become “faithless electors” and defy the state total. But they could. And the reason they still can indicates the flexibility of this system, a flexibility that was put there by the Founders for reasons that resonate today.

Here is a new article in TIME addressing this new possibility that Trump might be kept from office.

There is a group calling themselves Hamilton Electors.

The Founders were afraid of mob rule. In the North the rural people were suspicious of the urban mobs, in the South the elites were afraid of the white peasantry and especially of the slaves who outnumbered them all, and the more settled East Coast thought the people west of the Appalachians were an unruly irresponsible mob––they had, after all, left because they couldn’t get along with anyone there (actually, they’d left because they would only succeed where they could find free land to own, land given them by the government back in Washington.) James Madison wanted the Electoral College as an instrument to push back against the numerical disadvantages the South had because it disenfranchised most of its population for being black. This interview at VOX does a good job of explaining Madison's ploy. A lot of the rationale for it was antidemocratic and downright bigoted, not just against the slave population but against the general population. The Founders were afraid of the ignorant mob deciding things. The Founders would be appalled by Donald Trump. While they were watching their democracy work itself out they were routinely appalled by each other, Jeffersonians vs. Hamiltonians, the whole unfolding story was a bitter argument.

But I don’t believe any of the Founders would approve of an Electoral College that would validate Donald Trump’s presidency. This invalidation of an ignorant, inexperienced, corrupt and dangerous unpredictable candidate was exactly what the Electoral College was supposed to prevent. Would Franklin approve of a president who thought science was a Chines hoax? Would Hamilton or Washington approve of a president who was a massive and lifelong tax evader? Those two Founders put on their old army uniforms and led a column of troops out into the frontier to put down a tax rebellion by the ancestors of this year’s Trump voters. The Founders knew the necessity of government. They also believed in checks and balances; Donald Trump believes in autocracy.

It’s unlikely that any of the Electors in Pennsylvania or Ohio or Michigan will refuse to cast their vote for Trump. It shows their proper loyalty to their electorate. But it would also show their proper loyalty to their electorate if the Electors loyal to Philadelphia and Detroit and Columbus respected the fact that nearly half of the voters in their state voted for Hillary Clinton, and that Hillary Clinton won millions more of the popular vote nationally than Trump did. Would doing this violate the rules or simply defy the conventional way of doing things. Would it, in fact, correct an antidemocratic fluke? In the end, are we provincials or are we all Americans?

This defiance of dangerous convention might open the door for examining other conventions we haven’t examined, out of habit or laziness, for instance why small numbers of citizens in less populous states like Wyoming get to have two senators while many millions more citizens in New York or Texas have only the same two senators. Why do the citizens of Washington DC, who outnumber the citizens of Wyoming, have no Senators at all, and no Congressperson either. As preposterous a calculation, really, as the one that stated black people were worth 3/5 of a vote while not being able to vote. For over a century after Emancipation southern (and many northern) black citizens were denied the right to vote because of similar perfectly legal and ancient conventions.

I’d also like to ask how many of these blue states that flipped into the Trump column did so because the Voting Rights Act was suspended by John Roberts’ Supreme Court, enabling the suppression of 300,000 legal voters we know of in Wisconsin alone. A cynical legal convention enabled the Tea Party wave of 2010 to resegregate congressional districts nationwide into mostly safe Republican ones and fewer Democratic ones. This also suppresses votes. The biggest and most brazen vote suppressor is the requirement of state issued IDs and the simultaneous effort by officials to make those IDs difficult for some people to get, some people who tend to vote Democratic. The Voting Rights Act needs to be reapplied nationwide, not just in the South where it was first enacted.

This article from McClatchy describes the likelihood that voter suppression in 14 states tipped the scales toward Trump.

I recognize that the Electoral College is part of the system that both candidates signed on to. At least Hillary did. Trump repeatedly stated he wouldn’t abide by results he disliked. So Hillary could not try to undermine those rules. But Electors could. It is well within their range of traditional options to refuse to rubber stamp a second loser of the popular vote in recent years. They might see it as their duty. They might see it as the only responsible thing to do.

And it would result in a major upheaval.

There is already a major upheaval going on. As the final returns are tallied it appears likely that several millions more will have voted for Hillary Clinton than voted for Trump. Millions of women are planning to march on Washington on inauguration day to protest that inauguration. Millions would march if he isn’t inaugurated, and many of those marchers would likely be armed. So we have a choice: which upheaval do we listen to? Do we back down because one of these upheavals is heavily armed? We’ve seen that kind of back down already. Heavily armed white revolutionaries in Oregon were let off the hook for what our Founding Fathers would have called treason. Think of George Washington facing down those yahoos in Oregon. He would have. Andrew Jackson, who Trump most closely resembles (although the comparison is an insult to Jackson) would have too.

I think that is one of the calculations going on right now, not to upset the white, heavily armed and understandably angry minority who voted for Trump by refusing to seat him. Maybe it would seem less dangerous if in the next month before the Electors meet it were more evident how unwise it would be to choose Trump for our president. Is he in Putin’s pocket? What about the massive fraud he will be defending himself against in court this month? The plaintiffs are not rich people, they are regular blue collar Americans. What if Trump continues to back away from his key promises? He changes his mind every five minutes. Will his own supporters tolerate this once he is in office? How do retirees feel about what Trump’s election is doing to the bond markets? And Paul Ryan’s promise to profitize Medicare? This is the moment for the Trump voters to be asking “What the hell have we done?” It’s important that they face the consequences of their vote. The Electoral College offers a moment for the nation to reconsider, and it should.

FYI... here's the list of the 2016 Electors.

If reform is the goal, here's an article from CSMonitor about that. Likelihood diminishes as this second right wing wave in six years entrenches itself in Congress and the courts.