It is my sincere opinion as a literate American citizen and student of the United States Constitution that the members of the Electoral College of 2016 have a moral and Constitutional duty to deny Donald Trump the Presidency and grant that position to Hillary Clinton.
My reasoning follows.
When I think about the United States Government I prefer when possible to look to the Constitution for guidance.
Article II Section 1 Par 2:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Article II Section 1 Paragraph 2 creates the Electoral College. Article II, as you know, is the article creating and defining the Presidency of the United States. The idea of a President was controversial at the time. Article II is the result of a great deal of work.
There is no indication within the the Constitution as to the reason for or purpose of the Electoral College. The Constitution does not say how states will select or allocate Electors, winner-take-all or otherwise. It does not say who electors have to vote for based on any consideration whatsoever. It says, in a nutshell, “States, each of you choose some Electors, designated voters, to meet in your state and vote for President. You get to have [so many] based on your population plus two just for being a state. They can’t be members of the Federal government. You figure out the rest.”
That “…two just for being a state…” part has Democrats outraged right now, particularly California Democrats, and has had (I’m guessing here) somebody somewhere in America outraged nonstop since before the Constitution was ratified. There is no point to being outraged. It is how it is, and it is not going away. All competitors for office play under the same rules. Those of us out here in the heartland don’t have to let the coasts elect our President all by themselves. We don’t really want them to.
By population math the United States government, including the Electoral College, appears to be not “proportional”, but we know from records that proportional representation was the topic of a great deal of debate the summer of 1787. What constituted proportional? What was a fair balance of power between population and statehood? Population and geography? Persons and places? It’s not hard to imagine a delegate from Georgia saying, “I don’t care if you do have twice as many people in Massachusetts, I’m a free state now and there is a limit to how much I’m going to be pushed around by somebody from clear out at the other end of the country.”
Any attempt to eliminate the Electoral College by Amendment today is going to get the exact same comment from people in most of the states between the Appalachians and the Sierra Nevada. It’s not going to happen.
55 men worked on this Constitution, under the Speakership of George Washington. They represented the 13 states. They did not represent voters in any direct way. These men, these delegates were selected by state legislatures, which in turn were selected by a few powerful white male voters. The state governments were the sole power in the nation at that time, and they were made up of human beings. That means there were jealousies, rivalries, and cross purposes, as well as an honest, shared, well meaning attempt to solve a serious problem. Powerful, influential men in all of the states had come to the conclusion that the so-called United States absolutely could not survive without improving their national government. A majority of the delegates opted to, rather than fix the current document of federation, create a new one, and a Federal government at the same time. There was no state then where every person in leadership believed in a strong Federal government, but there was enough agreement nationwide to launch the Constitutional Convention.
It has become popular these days to sneer at professional politicians, but professional politicians created this country. It could have been no other way. Welcome to humankind. Most of these particular professional politicians had also been soldiers, mostly officers, in the war of Independence. They literally had skin in the game.
Some of these professional politicians came from slave states and some came from free. Almost half of the delegates owned slaves. And they worked by consensus. They had to hammer out something everybody could live with. Parts of it look ugly from the present day, but we don’t have the same problems they had. Slavery was already there. They weren’t going to solve that one in one summer in Philly.
The Constitution defines the mechanics of how the Electors will vote. The original version never worked well and nearly ended the nation with election of 1800, which is a separate story in itself, and has been amended. Here is the currently active version, the 12th Amendment, ratified in 1804:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.14 —The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
If you’re still with me, let’s take a look at that.
First, although it is complex, it does not specify how the electors are to decide to vote. The Constitution clearly leaves the selection of Electors to the states, and the voting to the Electors themselves. It is specified that the results of their vote will be cross tabulated, signed, certified, sealed, and delivered to the President of the Senate.
It is worthy to note that the text of the 12th Amendment, like the original text before it, appears to assume that Electoral votes in states will not be unanimous. The instructions appear to assume that even within states there would be an actual process of contested election underway in the Electoral College.
We can observe that Electors exist. The Constitution requires Electors. The election process could work essentially the same without them: the states could decide by whatever process they chose who to vote for and send that decision, sealed, to Congress. The Senate could open the decisions, count them, and follow the rest of the instructions above. That’s not how they did it.
The Framers of the Constitution decided to insert citizens, almost certainly wealthy white males since nobody else could vote, between the decisions of the states who selected them and the direct vote for President and Vice President. The Constitution expressly says that the Electors themselves will gather and vote. There is no suggestion that they are there to deliver a note from the home district. We cannot know for certain what the Framers were thinking, but to me it appears that they thought that emotions on the streets in the Electors’ states might need further consideration, or reconsideration, before making some person President.
It is my opinion that the Electors have an obligation to their vow to uphold and defend the Constitution of the United States against all enemies foreign and domestic, and that this obligation is higher than any other duty they have as Electors. That obligation requires them to, if necessary, stand up to the mob in favor of the Constitution, to make a decision, themselves, for a president who will uphold and respect the Constitution, and to vote that decision. Donald Trump’s holdings and businesses alone put him in direct contravention of Article I Section 9 Paragraph 8 of the Constitution; his many statements of intent to violate numerous provisions of the Constitution cannot be ignored; the strong evidence of Russian influence in the election is fully relevant to an Elector’s decision. The Electors cannot both uphold their oath of office, and vote for Donald Trump.
There is no Constitutional obligation for the Electors to select a President and a Vice President from the same political party. The Constitution does not acknowledge the existence of political parties. Political parties are a handy means for organizing like minded people, but they are not necessary to the operation of the Republic. Electors are expressly required to cast two separate ballots, one marked President and one marked Vice President.
If the Electors had no obligation as citizens to uphold the Constitution while performing their duties, the United States Postal Service could have done their job as well, cheaper. I do not believe that Electors were carefully inserted between the decisions of the states and the inauguration of a President as a rubber stamp. We cannot know the Framers’ reasoning, but we can feel nearly certain that they had some reason for creating the position of Elector.
The rest of Amendment XII is important too, but not for the purposes of this discussion. I don’t wish to muddy the waters further. It is my sincere opinion as a literate American citizen and student of the United States Constitution that the members of the Electoral College have a moral and Constitutional duty to deny Donald Trump the Presidency and grant that position to Hillary Clinton. They could, if they chose, simultaneously award the Vice Presidency to Mike Pence.*
*I would hate to see a VP Pence, but he has not indulged in multiple clear violations of law, nor stated any intention to violate the Constitution as President. He is qualified.