INTRODUCTION
A MORE PERFECT UNION
The Last Step Toward American Democracy
At 4:43 a.m. on November 9, 2016, Micheal Baca, a 24-year-old Democratic presidential elector from Colorado, sent an urgent text message to a friend. “I have a plan,” Baca wrote.
In retrospect, it was completely insane, but these were insane times.
A few hours earlier, Donald Trump, the Republican nominee for president, had stunned the world by pulling out what may be the most improbable election victory in American history. Trump was losing the popular vote to Hillary Clinton, the Democratic nominee, by more than two million votes, a margin that continued to grow as late returns rolled in. But he’d won where it counted, in the Electoral College. Or he had appeared to.
Baca, a former marine who was earning a living in Denver that fall as a driver for Uber and Lyft, had no political experience. He knew one thing, though: You might think you’re voting for the president when you cast a ballot, but you’re not. You’re voting for Micheal Baca, or his Republican counterpart. Technically, the presidency wouldn’t be decided until the 538 electors voted, as they were scheduled to do on December 19 in state capitals around the country.
The scheme came together quickly in Baca’s mind, and he started testing it out. In a text to a fellow Democratic elector in Washington, Bret Chiafalo, he wrote, “We can avoid Trump. But will need 37 Republicans to defect. Call me crazy but this needs to work.”
“It’s a Hail Mary dude,” Chiafalo wrote back. “But it’s all we got.”
In regular years, the electors’ vote is a formality—a ceremonial reaffirmation of the popular vote that most Americans ignore, if they are aware it is happening at all. But in 2016, for the fifth time in the nation’s history, the Electoral College and the popular vote didn’t match, a phenomenon caused by so-called “winner-take-all” laws. These laws, used in nearly every state, are just what they sound like: they award all of a state’s electors to the candidate who earns the most popular votes in the state, no matter how close the margin. The key to Trump’s win came in three states—Pennsylvania, Wisconsin, and Michigan—where he beat Clinton by a combined total of just under 78,000 votes out of more than 13 million cast. That’s less than the capacity of the University of Michigan’s football stadium, but it was enough, barely, to secure all of those states’ electors, cross the electoral vote majority threshold of 270, and claim the presidency.
Baca, like millions of other Americans in 2016, including some top Republicans, believed that Trump would be the least qualified president in history. And that wasn’t counting the disturbing circumstances surrounding his victory, which included a coordinated cyberattack carried out by the Russian government on Trump’s behalf and with his campaign’s awareness. As new details of the Russian plot trickled out, Baca became certain that a Trump presidency posed an existential threat to the nation. The vote of the electors was the last thing standing between Trump and the Oval Office, and Baca was determined to keep him from ever getting there.
The good news was that the Constitution’s framers had anticipated exactly this scenario. They knew that most people would not be well informed about national candidates and feared they would be easily taken in by a smooth-talking con artist. The Electoral College was the solution. In the Federalist no. 68, Alexander Hamilton wrote that the College would 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.”1 How? By entrusting the choice of the president to a select body of men in each state—men who would “possess the information and discernment requisite to such complicated investigations.” These electors, Hamilton assured his readers, would be “most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.”
In other words, Hamilton was saying that the electors would think for themselves, reject unqualified candidates however popular they might be, and choose a leader who would govern in the best interests of the nation.
Inspiring words, and in the days after Trump’s victory, more than a few shell-shocked liberals latched on to them. Baca and Chiafalo dubbed themselves “Hamilton Electors” and began working to persuade their Republican counterparts not to vote for Donald Trump but instead unite behind a compromise candidate who was actually qualified for the job.
As anti-Trump protestors took to the streets around the country, blocking traffic, chanting “Not my president!” and clashing with police, a quieter protest was developing largely behind closed doors—an unprecedented, loosely coordinated national effort to vindicate the framers’ vision, reverse the outcome of the election, and save the republic.
A petition posted on Change.org that called on “Conscientious Electors to protect the Constitution from Donald Trump” by switching their votes from Trump to Clinton drew nearly five million signatures.2
Michael Signer, the mayor of Charlottesville, Virginia, at the time, and the author of books about demagogues and James Madison, published an article in Time magazine arguing that Republican electors “owe it to all Americans to deliberate on their choice in the manner required by the Constitution”—in short, to “revolt against Trump.”3
A Harvard law professor named Lawrence Lessig said he had been told of 20 Republican electors, and possibly more, who were considering voting for someone other than Trump, although none ever publicly came forward.4
A short video posted to YouTube and viewed more than 1.4 million times featured a solemn parade of TV and movie stars pleading with Republican electors to switch their votes. It opened with Martin Sheen, donning his spectacles and summoning the benevolent didacticism of his alter ego, President Jed Bartlet of The West Wing, a liberal’s fantasy chief executive who could recite the Federalist Papers in his sleep.
“As you know,” Sheen said, after quoting Hamilton, “our founding fathers built the Electoral College to safeguard the American people from the dangers of a demagogue.”5
The rest of the celebrities seemed to be trying to strike a tone somewhere between dire and apocalyptic. “I’m not asking you to vote for Hillary Clinton,” several of them repeated. “Any eligible person” would do. They assured the electors that “by voting [their] conscience” they would go down in history as brave and heroic patriots. The overall effect sounded like a group of hostages trying to sweet-talk their kidnapper into putting down the gun.
The problem was that the Electoral College has almost never operated as Alexander Hamilton pictured it would. Not since 1792 have electors been independent, deliberative actors who saw their task as picking the fittest person for the job. There isn’t even one single body of electors. Instead, each presidential candidate has his or her own “slate” of electors tapped by local party leaders for nothing but their partisan loyalty. Whichever candidate wins a state’s popular vote sends all of his or her electors to the state capital, where they cast their ballots for that candidate. And just in case any of them should get a notion to vote for someone else, most states have laws prohibiting them from doing so.
In other words, electors are today, as they have nearly always been, obedient partisan hacks, rubber stamps for their party’s candidate. But none of that mattered in the fall of 2016.
* * *
By later November, it seemed as though Democrats had entered a fugue state. Sure, anyone could “like” a video or sign an online petition; but convincing electors—a motley cast of characters made up of former politicians, party insiders, and random activists who happened to know someone powerful—that they suddenly represented the last bulwark of American democracy?6 It wasn’t just a handful of potential mavericks who were needed either. Trump had won states representing 306 electoral votes, which meant that Micheal Baca’s Election Night calculation had been right: at least 37 Republican electors would have to agree to switch their vote to someone else to have a chance of stopping Trump.
Even if that happened, it wouldn’t guarantee Trump’s defeat; it would only deny him a majority of electoral votes and send the election to the House of Representatives, which had not decided a presidential race since 1825. (Trump would likely have won in the House anyway, because the Constitution gives each state a single vote, and a majority of state delegations in 2016 were led by Republicans.)
Copyright © 2020 by Jesse Wegman
