Electoral nullification is a Constitutional mechanism
—and now is the time to use it!

by Bill Weinberg, The Villager

The clock is ticking. We have until Dec. 19 to act. And the future of the country—indeed, the world—depends on it.

That's the day the Electoral College votes and makes Donald Trump's status as president-elect official. The electors have a duty to refuse to seat Trump—quite simply, on the grounds that he is a dangerous fascist, and it is unacceptable for a fascist to become the president of the United States.

I hope, after the appointment of white nationalist mouthpiece Steve Bannon as his top counselor, that it is not necessary make the case that Trump is an actual fascist. We have had many utterly monstrous presidents—Dubya and Poppy Bush, Reagan, Nixon. None of them were fascists. They did not openly play to racist hate, and they did not display Trump's dictatorial ambitions. Now we are looking at the Real McCoy.

It's ironic that the Electoral College—the institution that got us into this mess, by giving undue weight to "red state" voters—now holds the only hope of getting us out.

The framers put the Electoral College in the Constitution precisely to serve as a break on the assumption of power by a demagogue. If there has ever been a time for it to serve that function, it is now. A petition calling for the electors to respect the popular vote and seat Hillary Clinton has won over 4.5 million signatures.

It's a faint glimmer of hope—but not an impossibility: Trump's electors could refuse to vote for him, effectively nullifying the election. The fact that Clinton won the popular vote gives the idea a moral and political credence. Yes, a general revolt of the Electoral College is unprecedented in American history—but so is the election of an actual fascist as president.

And there have been decisive outbursts before in our history of sensible Republicans so aghast at their party's candidate that they defect to the Democrats.

Famously, the "Mugwumps"—turncoat Republicans—helped get Democrat Grover Cleveland elected in 1884, when the GOP's James Blaine was deemed too aggressively imperialist and beholden to industrial interests. Neo-Mugwumpery certainly helped elect Barack Obama in 2008, after eight years of Mad Cowboy Disease. This time, the choice is far more stark, and the stakes far higher. The survival of our democracy could be at stake, and enough electors may realize this.

The electors in 21 states are free to vote for a candidate other than the one they are pledged for. Even in the remaining states, the penalty for failing to do so is only a fine—and the vote is still counted.

Out of those 21 states, Clinton lost 16—worth 166 electoral votes. In these states, it is perfectly legal for electors to switch their vote.

Clinton is slated to receive 232 votes to Trump's 306. A total of 270 are needed to win. So if 38 Republican electors can be swayed to respect the popular vote, Clinton will be seated as president.

If only 37 are swayed, the vote would be thrown to the House of Representatives. The lawmakers could elect Trump—but maybe they wouldn't. Even a dangerous reactionary like his running mate Mike Pence or House Speaker Paul Ryan would be less dangerous than Trump. These men lack both Trump's charismatic appeal and dictatorial ambition, and therefore fall short of actual fascism.

And the beauty of this idea is that it conforms to the "original intent" of the framers—that concept so fetishized by the political right. Alexander Hamilton, writing in the Federalist Papers, boasted of the safeguard against chaos provided by the Electoral College:

"[T]he...election should be made by men most capable of analyzing the qualities adapted to the station... It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election...to...so important an agency...as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief."

Hamilton added that the Electoral College "affords a moral certainty, 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."

And some Republican electors have showed signs of wavering. Over the summer, there was a spate of news stories about electors admitting they weren't sure they could cast a vote for Trump. Politico website in August reported: "Even red-state Republicans in the Electoral College are uncomfortable with the man they'll have to support." We must urgently appeal to their conscience.

Two Democratic electors have issued a call for their Republican colleagues to refuse to seat Trump—suggesting instead an unnamed "moderate" Republican as a compromise candidate. P. Bret Chiafalo of Washington state and Micheal Baca of Colorado are appealing to "Moral Electors," in an effort to persuade 37 Republicans to dump Trump. They have offered in return to dump Hillary in favor a compromise Republican candidate.

Chiafalo told Politico six days after the election: "This is a long shot. It's a Hail Mary. However, I do see situations...when we've already had two or three Republican electors state publicly they didn’t want to vote for Trump. How many of them have real issues with Trump in private?"

Hillary Clinton's lead in the popular vote has now widened to 1.5 million, making her margin bigger than those for John F. Kennedy and Richard Nixon. And this margin would certainly have been bigger still if not for the Republican-backed "voter suppression" laws enacted since 2010 in several states.

"When we look back, we will find that voter suppression figured prominently in the story surrounding the 2016 presidential election," Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law, told McClatchy news service.

The Electoral College is an elitist institution that should be abolished. But it needs to do what it was designed to do, just one time before we abolish it. The electors must rise to the occasion and correct this fatal mistake of Trump's victory.

Despite its perfect constitutionality, this does of course hold the risk of further escalation and even civil war. But Trump being seated as president holds greater risk of these things—as well as that of a dangerous dictatorship being consolidated. Remember: with Republican control of both houses of Congress and the swing seat vacant on the Supreme Court, he will have all three branches of government under his control. Control of Congress and the executive by the same party is not unprecedented, but the added factors of the high court seat and Trump's open contempt for democracy make it far more dangerous than ever before. For the first time since the adoption of the Constitution in 1788, the system of "checks and balances" crafted by the framers will have failed. And the fundamental freedoms enumerated in the Bill of Rights will be under grave threat.

There is no risk-free way out of this pickle. Nullification of the election is the less risky option.

And while the odds of it working may be vanishingly slim, I contend that advocating it is nonetheless morally and tactically critical. We will be denying Trump's presidency legitimacy from jump street—just as the Republicans effectively did to Obama, with their racist "birther" nonsense. Only we, in contrast, will be doing it for legitimate reasons—fundamental democratic and anti-fascist principles.

This will better position us to do what we are going to have to do if Trump takes office: build an uncompromising, pro-democratic civil resistance movement to oppose his fascist agenda every step of the way.

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A slightly different version of this story appeared Nov. 30 in The Villager.

Photo: Protesters in front of the Trump International Hotel at 1 Central Park West on Nov. 13.
Credit: Karla Ann Cote via Flickr

Update: The actual vote gap has now surged past 2.6 million—making Trump the least popular victor since John Quincy Adams in 1824. Seven Democratic electors have now joined the "Hamilton Electors" group that pledges to support an "alternative" Republican candidate. Christopher Suprun, a Republican elector in Texas, had an op-ed in the New York Times Dec. 5, "Why I Will Not Cast My Electoral Vote for Donald Trump." He suggests Ohio governor John Kasich as a compromise Republican candidate.The Americans for the XII Amendment website has a list of daily actions you can take to help prevent Trump from being seated.

From our Daily Report:

Can Electoral College save the republic?
CounterVortex, Nov. 10, 2016

Yes, Donald Trump is a fascist
CounterVortex, Nov. 15, 2016

Video:

Electoral Nullification: a Constitutional mechanism
CounterVortex, Nov. 14, 2016

Bill Weinberg: the case for Electoral Nullification
CounterVortex, Nov. 14, 2016

Bill Weinberg: Donald Trump is a fascist
CounterVortex, Nov. 19, 2016

See also:

TRUMP'S VICTORY AND MIGRATION
by Kristy Siegfried, IRIN
CounterVortex, November 2016

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Reprinted by CounterVortex, Dec. 9, 2016