Excerpt from: TIME
Geoffrey R. Stone Dec. 12, 2016
Geoffrey R. Stone is a Edward H. Levi Distinguished Professor of Law at the University of Chicago.
President Elect Trump Continues His “Thank You Tour” In Grand Rapids, Michigan on Dec. 9, 2016. Drew Angerer—Getty Images
In his 1957 Pulitzer-Prize winning book, Profiles in Courage, John F. Kennedy celebrated the valor and integrity of eight public officials who had courageously defied the demands of their own political party to do the right thing—to do what they believed was right for their nation even in the face of personal and political adversity. Among those Kennedy profiled were such memorable figures as John Quincy Adams, Daniel Webster, Sam Houston and Robert A. Taft. Each of the individuals Kennedy praised in Profiles in Courage demonstrated the independence of mind and the personal fortitude necessary for the flourishing, indeed for the very existence, of our democracy.
Kennedy warned, though, that the capacity of public officials to act with such courage at that time was under serious threat. Indeed, three years before he would participate in the nation’s first televised presidential debates, he cautioned that “today the challenge of political courage looms larger than ever before, for our everyday life is becoming so saturated with the tremendous power of mass communications that any unpopular or unorthodox course arouses a storm of protests such as John Quincy Adams . . . could never have envisioned.” Moreover, he added, “our political life is becoming . . . so dominated by . . . public relations men that the idealist who dreams of independent statesmanship” now faces almost insurmountable challenges. “In the days ahead,” Kennedy concluded, “only the very courageous will be able to take the hard and unpopular decisions necessary for our survival” as a democracy.
The forces Kennedy warned about 60 years ago have grown stronger and more threatening today. But that does not mean that public officials in the years since Kennedy wrote those powerful words have not continued to demonstrate courage in the face of adversity.
In 1972, for example, Republican Governor Nelson Rockefeller vetoed a religiously inspired bill that would have outlawed abortion in the state, boldly proclaiming that “I do not believe it is right for one group to impose its vision of morality on an entire society.”
The following year, Republican Attorney General Elliot Richardson and Republican Deputy Attorney General William Ruckelshaus both resigned their positions rather than obey President Richard Nixon’s unconscionable command that they fire Special Watergate Prosecutor Archibald Cox. Solicitor General Robert Bork, the next in command in the Department of Justice, then complied with Nixon’s order and dismissed Cox in furtherance of Nixon’s effort to stifle the investigation.
In 1987, six Republican Senators courageously joined 52 Democrats to reject President Ronald Reagan’s nomination of then-Judge Robert Bork to the Supreme Court of the United States.
In 2002, Republican President George W. Bush boldly signed into law the McCain-Feingold Campaign Finance Act, which sharply regulated political expenditures in the electoral process, even though more than 80% of Republicans in Congress voted against the legislation.
In 2009, Republican California Governor Arnold Schwarzenegger, in direct defiance of the national platform of his party, refused to defend the constitutionality of California’s Proposition 8, which forbade same-sex marriage.
Why is any of this relevant today? Next week, the Electoral College will meet. One question in the air is whether the electors should simply cast their votes for whichever candidate “won” their state, or whether they should exercise independent judgment. To answer that question, we must begin at the beginning.
Why do we have an Electoral College? Why not just count up the votes nationally and declare the candidate who receives the most votes President of the United States. That is, after all, how we select governors within each state, so why not do the same for the president?
At least three considerations led the Framers of our Constitution to embrace the idea of the Electoral College.
First, the small states refused to ratify the Constitution unless they were given a disproportionate influence in the national government. Like the Senate, the Electoral College was designed to give smaller states more power than they would have had in a “one person/one vote” system.
Second, the slave states opposed a popular vote election of the president because it would not permit them to count their slaves, who made up a large part of their population, but who, of course, were not permitted to vote. The Electoral College system inflated the influence of these states by distributing electors in a manner that counted each slave as 3/5 of a free person, thus increasing the influence of the slave states.
Third, and most important, the Framers were skeptical about direct democracy. They did not always trust the common man to act wisely. They, therefore, created a complex web of checks and balances to guard against the possible vagaries of the democratic process. As Alexander Hamilton explained in The Federalist Papers, the Electoral College was designed to ensure “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.” The point of the Electoral College was to preserve “the sense of the people,” while at the same time ensuring that the president is chosen by electors “most capable of analyzing the qualities adapted to the station.”
In short, then, as envisioned by the Framers, the responsibility of the members of the Electoral College was to give significant weight to the judgments of the citizens of their state and of the nation, while at the same time ensuring that the president will be an individual “endowed with the requisite qualifications.”
What, then, is the responsibility of the members of the Electoral College in the 2016 election? At the outset, there is a bit of dilemma, because although Hillary Clinton won the popular vote nationally by almost three million votes, and by a substantial margin of 48% to 46%, Donald Trump currently leads in Electoral College votes by a margin of 306 to 232.
Trump argues that the electors should mechanically cast the Electoral College votes of their states because, as he has boasted repeatedly, he won in a “landslide.” This is simply false. Not only did he lose the popular vote by a substantial margin, but his lead in the Electoral College is much narrower than he thinks. In fact, his supposed “landslide” actually ranks 47th among the nation’s 58 presidential elections in terms of the percent of Electoral College votes “won” by the candidate. In other words, his Electoral College lead at this point places him in the bottom 20%. Moreover, if Clinton had received only 80,000 additional votes in Michigan, Pennsylvania and Wisconsin combined, Clinton would today have been ahead in the Electoral College. In the grand scheme of things, then, not a very impressive “victory.”
In only two elections in American history has the Electoral College awarded the presidency to the candidate who lost the national popular vote. In 1888, it awarded the presidency to Benjamin Harrison over Grover Cleveland and in 2000 it awarded the presidency to George W. Bush over Al Gore. But in those two elections, Harrison was behind in the popular vote by only 94,000 votes, or .8%, and Bush was behind in the popular vote by only 540,000, or .5%. Neither of those situations comes even close to Trump’s loss by almost 3 million votes and by a full 2% of the popular vote.
Beyond that, though, there are sensible reasons, particularly in light of Hamilton’s explanation of the Electoral College, for the members of the Electoral College to be wary of awarding the election to Donald Trump.
First, there are serious questions, raised even by the leaders of his own party, about whether Trump has the experience, the character, the judgment, the knowledge, the integrity or the temperament to serve as President of the United States. To cite just one example, former Republican presidential nominee Mitt Romney charged that “Donald Trump is a phony, a fraud. . . . He’s playing members of the American public for suckers.” “Dishonesty,” Romney added, is “Donald Trump’s hallmark.” He then went on to castigate Trump for the “bullying, the greed, the showing off, the misogyny, the absurd third-grade theatrics.”
Similar views have been expressed at various times by John McCain, Lindsay Graham, Marco Rubio, Ted Cruz and Jeb Bush. Indeed, no former Republican president endorsed Trump during the campaign—even after he won their party’s nomination. In light of Alexander Hamilton’s explanation of the Electoral College, such unprecedented condemnation from the leaders of his own party raises serious questions whether Trump is, in fact, in “eminent degree endowed with the requisite qualifications” to serve as President of the United States.
Moreover, as Romney observed, Trump’s campaign for president was marked by a flood of misstatements and lies designed to mislead the American people. This rampant dishonesty continues. Trump recently declared, for example, in a series of bald-faced lies, that he won the popular vote by three million votes, that millions of illegal immigrants voted unlawfully for Hillary Clinton, and that the African-American community loves him – even though 89% of African-American voters in fact voted against him.
For members of the Electoral College, the judgment, integrity and character of a candidate who generates votes by deceit, falsehood and outright lies have to be called into question. And lest one think these lies were harmless, it is worth noting, to cite just one example, that 40% of all Trump supporters believe that he won the popular vote by a landslide. This is no way to promote the values of democracy.
Equally troubling, during the election and in the weeks since, Trump repeatedly expressed views that were racist, anti-Muslim, misogynist and filled with disdain for his fellow Americans. It is no wonder that he lost the popular vote by almost three million votes. Should the members of the Electoral College ignore this behavior in exercising their constitutional authority? Musn’t they, in order to fulfill their constitutional responsibilities, consider whether this man has the character, the judgment, the temperament, the sense of human decency, and the truthfulness to serve as President of the United States?
And still further, we now learn that the Russians played a significant role in manipulating information available to the American people in a concerted effort to bring about the election of Trump. Even if this was not Trump’s doing, is it not the duty of the members of the Electoral College to consider whether the 2016 presidential election was undermined by a foreign power? And mustn’t it matter that the foreign power did so in order to bring about the election of a particular candidate? As Alexander Hamilton made clear, this was, one of the chief concerns of the Framers. As Hamilton explained in The Federalist Papers, a primary reason for the Electoral College was the need to protect our nation against “the desire of foreign powers to gain an improper ascendant in our councils . . . by raising a creature of their own to the chief magistracy of the Union.”
Of course, people will say, not without reason, “Whoa! If the Electoral College interferes in the outcome of this election it will create an outcry that the election was ‘rigged.’” Trump supporters will no doubt charge that the Electoral College denied the presidency to the legitimate “winner,” even though he lost the popular vote by almost three million votes. But remember the election of 2000. The members of the Supreme Court did what they saw as their constitutional duty. They intervened in a way that resulted in the election of George W. Bush, rather than Al Gore, even though Gore won the popular vote by 500,000 votes. The justices fulfilled what they saw as their constitutional duty in the crisis of a contested presidential election.
The same is true now for the members of the Electoral College. If they do not award the presidency to Donald Trump, they will of course be condemned by Trump and his supporters and accused by them of destroying our democracy. That will be ugly. But this is where John F. Kennedy and Profiles in Courage enters the picture. If this is the right outcome, then our electors must fearlessly and courageously do right by our nation. That is their constitutional responsibility. If they fulfill that responsibility, they will not be “faithless” electors, but faithful ones. Our nation will be proud of their courage, their sense of responsibility, and their integrity, and they will have fulfilled the most fundamental vision of our Founders.