Washington – I wish my predictions four years ago had been wrong.
In September, 2016, nearly two months before the presidential election, I wrote the following predictions:
• "...the Clinton campaign's strategy of relying excessively on demographics and identity politics will not win the 2016 presidential election."
• "...Trump winning, assisted by free media exposure he has cleverly turned to his advantage."
• "...a colossal crisis looming from day one of a Trump presidency as he throws government into turmoil...."
All came true, to my great regret. Donald Trump was elected by the Electoral College, threw government operations into turmoil and now, unsurprisingly, a colossal crisis is upon us.*
In December, 2016, before the Electoral College voted, I wrote this about the electors; that is, whether
• "...they will be voting in accordance with Alexander Hamilton's explanation of their responsibilities in Federalist #68, which allows them considerable discretion. Specifically, that includes taking into consideration the qualifications of the candidates and whether the preceding general election may have been tainted by foreign involvement. In Hamilton's exact words, 'the desire in foreign powers to gain an improper ascendant in our councils'."
• "...they will be voting in accordance with Alexander Hamilton's explanation of their responsibilities in Federalist #68, which allows them considerable discretion. Specifically, that includes taking into consideration the qualifications of the candidates and whether the preceding general election may have been tainted by foreign involvement. In Hamilton's exact words, 'the desire in foreign powers to gain an improper ascendant in our councils'."
The 2016 electors did not heed Hamilton. They chose, in Hamilton's words, an "improper ascendant" as president, and one who did not win the popular vote at that. The new Senate Intelligence Committee's bipartisan report now confirms the "desire in foreign powers" that Hamilton anticipated, which several other investigations have also found. Those conclusions, sadly, seem beyond dispute.
The electors of 2016 should have waited until the influence of foreign powers was evaluated. They could have done this by letting Congress decide who would become president and vice president under the Twelfth Amendment to the Constitution, which anticipates disputes within the Electoral College. That amendment also anticipates disputes within the House, even to the point of having the vice president become president if the dispute is not resolved by March 4th of the year following the election.
It is time to think ahead as to what may happen in the upcoming election so as not to repeat the 2016 debacle, and to explore the options and scenarios that the Constitution itself contemplates.
1. Could enough states join together in an interstate compact to cast their electoral votes for the national popular vote winner, thus resolving any differences between the popular and electoral college outcomes? There is still time, but this seems unlikely unless the coronavirus pandemic imparts a new sense of urgency to have the country more united going into what could be years of quarantines and lockdowns. Governors could call legislatures into session to act on the compact, but even if they joined other states – 73% of the necessary electoral college majority has already joined – would Congress and the president approve the compact? That approval is arguably unnecessary, given that some interstate compacts do not require it, if the compact does not interfere with the "just sovereignty" of the national government under the Virginia v. Tennessee precedent. The compact effort may be worth it; it could also provoke the kind of dispute that would require the House to resolve the election under the Twelfth Amendment, potentially a better outcome.
2. Could electors abstain in sufficient numbers to prevent the Electoral College from producing a winner, and thereby move the selection of the president or vice-president to the House or Senate, respectively? There is precedent for this choice: in 1836, Virginia electors abstained from voting for Richard M. Johnson as vice president, throwing the selection to the Senate. This is different from the usual "faithless" elector question, which does not address the abstention option. Federal courts use the "abstention doctrine" frequently to find ways of resolving disputes in a federal system of government. Recognizing elector abstention as a current constitutional option must be considered a possibility, especially because of its successful precedent. The practical effect of elector abstention in the case of presidential selection would be to place the matter in the hands of House members elected in 2020, one vote per state. Currently Republicans hold a majority of states in the House, but that could change.
3. Could the House delay any such selection until after March 4, 2021, so that the vice president would become president? This must be considered a possibility in a situation where one party has a majority of the total votes, and can control the rules, but another party has a majority of votes in a one vote per state election. There is also the problem of assembling a necessary quorum in the time of a pandemic. Again, the Twelfth Amendment anticipates such disputes and provides a resolution: the vice president becomes president.
4. Could governors, exercising their police powers, determine which constitutional method is to be used in selecting the next president? Ours is a government of dual sovereignty, with states having powers to protect the health and safety of their residents, often called the police powers. The limits of these powers have seldom been explored, but in times of dire emergencies when tens or hundreds of thousands of lives are at stake, the powers must be interpreted broadly. That would include how states deal with a president who has failed to work with them, if they see that his continued presence in office is a mortal danger to their residents. No governor is obliged by the Constitution to enable death and suffering, when there are other choices. The police powers conceivably could be used in conjunction with the constitutional authority states already have over elections to determine the selection process for the next president. Although there is no exact precedent for it, governors could choose not to certify** their state's electoral votes, so as to deny any candidate an electoral college victory if the candidate did not win the national popular vote, or if there are so many election irregularities among the states that it is unclear who actually won. That would include election outcomes that will have been influenced by foreign powers, against which Hamilton warned. Doubtless, foreign powers are currently and unceasingly at work, sowing disruption into our 2020 elections.
The above scenarios and options are all grounded in the Constitution, which anticipates election disputes and crises. We as a nation are not helpless to resolve even the most difficult questions if we will only read our whole foundational document and understand the choices available to us in our system of dual sovereignty. All of the above discussion is pragmatic, not ideological.
Although some of these scenarios seem unusual, they should be thoroughly explored at a time when the backdrop to the upcoming election portends untold levels of death and division, even violence and riots, unless the country chooses wise, competent, and unifying leadership in the coming election cycle.
My regrettable prediction is that without a change in the presidency, the country will continue to collapse and we will see hundreds of thousands of needless deaths.
______________________________
* How much of the colossal crisis was unavoidable is a relevant question, but it can be answered by looking at other countries that faced the same pandemic but minimized death and disruption by good preparation and execution of pandemic plans. The Trump administration's response has been characterized by allies in the international community as appallingly bad.
** 3 U.S. Code § 5. Determination of controversy as to appointment of electors:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. (emphasis added)
It is time to think ahead as to what may happen in the upcoming election so as not to repeat the 2016 debacle, and to explore the options and scenarios that the Constitution itself contemplates.
1. Could enough states join together in an interstate compact to cast their electoral votes for the national popular vote winner, thus resolving any differences between the popular and electoral college outcomes? There is still time, but this seems unlikely unless the coronavirus pandemic imparts a new sense of urgency to have the country more united going into what could be years of quarantines and lockdowns. Governors could call legislatures into session to act on the compact, but even if they joined other states – 73% of the necessary electoral college majority has already joined – would Congress and the president approve the compact? That approval is arguably unnecessary, given that some interstate compacts do not require it, if the compact does not interfere with the "just sovereignty" of the national government under the Virginia v. Tennessee precedent. The compact effort may be worth it; it could also provoke the kind of dispute that would require the House to resolve the election under the Twelfth Amendment, potentially a better outcome.
2. Could electors abstain in sufficient numbers to prevent the Electoral College from producing a winner, and thereby move the selection of the president or vice-president to the House or Senate, respectively? There is precedent for this choice: in 1836, Virginia electors abstained from voting for Richard M. Johnson as vice president, throwing the selection to the Senate. This is different from the usual "faithless" elector question, which does not address the abstention option. Federal courts use the "abstention doctrine" frequently to find ways of resolving disputes in a federal system of government. Recognizing elector abstention as a current constitutional option must be considered a possibility, especially because of its successful precedent. The practical effect of elector abstention in the case of presidential selection would be to place the matter in the hands of House members elected in 2020, one vote per state. Currently Republicans hold a majority of states in the House, but that could change.
3. Could the House delay any such selection until after March 4, 2021, so that the vice president would become president? This must be considered a possibility in a situation where one party has a majority of the total votes, and can control the rules, but another party has a majority of votes in a one vote per state election. There is also the problem of assembling a necessary quorum in the time of a pandemic. Again, the Twelfth Amendment anticipates such disputes and provides a resolution: the vice president becomes president.
4. Could governors, exercising their police powers, determine which constitutional method is to be used in selecting the next president? Ours is a government of dual sovereignty, with states having powers to protect the health and safety of their residents, often called the police powers. The limits of these powers have seldom been explored, but in times of dire emergencies when tens or hundreds of thousands of lives are at stake, the powers must be interpreted broadly. That would include how states deal with a president who has failed to work with them, if they see that his continued presence in office is a mortal danger to their residents. No governor is obliged by the Constitution to enable death and suffering, when there are other choices. The police powers conceivably could be used in conjunction with the constitutional authority states already have over elections to determine the selection process for the next president. Although there is no exact precedent for it, governors could choose not to certify** their state's electoral votes, so as to deny any candidate an electoral college victory if the candidate did not win the national popular vote, or if there are so many election irregularities among the states that it is unclear who actually won. That would include election outcomes that will have been influenced by foreign powers, against which Hamilton warned. Doubtless, foreign powers are currently and unceasingly at work, sowing disruption into our 2020 elections.
The above scenarios and options are all grounded in the Constitution, which anticipates election disputes and crises. We as a nation are not helpless to resolve even the most difficult questions if we will only read our whole foundational document and understand the choices available to us in our system of dual sovereignty. All of the above discussion is pragmatic, not ideological.
Although some of these scenarios seem unusual, they should be thoroughly explored at a time when the backdrop to the upcoming election portends untold levels of death and division, even violence and riots, unless the country chooses wise, competent, and unifying leadership in the coming election cycle.
My regrettable prediction is that without a change in the presidency, the country will continue to collapse and we will see hundreds of thousands of needless deaths.
______________________________
* How much of the colossal crisis was unavoidable is a relevant question, but it can be answered by looking at other countries that faced the same pandemic but minimized death and disruption by good preparation and execution of pandemic plans. The Trump administration's response has been characterized by allies in the international community as appallingly bad.
** 3 U.S. Code § 5. Determination of controversy as to appointment of electors:
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned. (emphasis added)
