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A new Electoral College fiasco brewing

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Most politically conscious people in the USA are aware of two glaring problems with the Electoral College: It allows someone who got fewer votes for president to be elected (this happened in both 2000 and 2016), and it creates the possibility of “faithless” electors, who will cast their ballot for someone other than the candidate they are supposed to vote for based on the election in their states.

The 2016 presidential election signaled how the latter feature could become an actual problem at some point, as seven electors (five pledged to Clinton and two pledged to Trump) voted for other candidates.

Four of the “faithless” electors came from Washington, a state won by Clinton. Three of them–Bret Chiafalo, 19-year-old Levi Guerra, and Esther John– cast their votes for former Secretary of State Colin Powell, according to the Seattle Times. They also participated in a movement started by Chiafalo. The so-called “Hamilton Electors” base their ideology on Alexander Hamilton–one of the Founding Fathers who wrote about the Electoral College in the Federalist Papers.  

The fourth “faithless” elector, Robert Satiacum, voted for Faith Spotted Eagle–a woman who is a member of the Yankton Sioux Nation, according to a local NBC affiliate. She played a public role in opposing the Keystone XL and Dakota Access pipelines. [The fifth faithless elector was from Hawaii. He cast his vote for Bernie Sanders, even though Hawaii law forbids electors to vote for someone other than the winner of the state’s presidential election. The law however can’t affect how the vote is actually cast in the Electoral College, and it also doesn’t provide any penalties for breaking it]

President-elect Trump lost Texas elector Christopher Suprun to John Kasich. Another Texas elector, Bill Greene, voted for Libertarian Ron Paul, according to the Texas Monthly. 

Let’s be clear: this kind of “symbolic” posturing is bad, because it helps set the stage for a situation in which such actions can go from being symbolic to being substantive. (Also, who in the Washington Democratic party decided it was a good idea to select these jackasses to be electors?).

Speaking of which, there is yet a third possibility for EC monkey business, which I confess I wasn’t really aware of until a few weeks ago: Congressional certification of the vote.

The way this works is that after the Electoral College meets tomorrow, Congress still has to certify the votes that were cast by it, and can in fact refuse to accept the votes of either individual electors or entire state delegations when it meets to certify the vote on January 6th.. If Congress were to do so, then the refused votes get tossed from the election, and the candidate who has the majority of the remaining electoral votes becomes president (In other words it’s not necessary for a candidate to get 270 electoral votes to win, but only a majority of the electoral votes actually certified by Congress. ETA: Election expert Ned Foley informs me that this assertion is in fact contested, and has been since the 19th century).

For Congress to refuse to certify any electoral votes, the following things have to happen: At least one member of the House and one member of the Senate have to lodge a specific objection to the counting of the vote(s) in question. If this were to happen, then the joint session of Congress would be adjourned for two hours, during which time each legislative body would separately debate the objection(s), and then vote. For any electoral votes not to be certified, both the House and the Senate must each by majority vote agree not to certify the votes to which an objection has been lodged.

There’s a very unfortunate precedent here: after the 2004 election, Stephanie Tubbs Jones, a member of Ohio’s House congressional delegation, got California senator Barbara Boxer to agree to join her objection to the Ohio Electoral College vote. You probably don’t remember this — I sure didn’t — because at the time even the people making the objection made it clear that they didn’t want to actually toss Ohio’s EC votes (doing so would have flipped the outcome of the election). Rather they insisted that this was symbolic gesture:

The move was not designed to overturn the re-election of President Bush, said Ohio Rep. Stephanie Tubbs Jones and California Sen. Barbara Boxer, who filed the objection.

The objecting Democrats, most of whom are House members, said they wanted to draw attention to the need for aggressive election reform in the wake of what they said were widespread voter problems.

In a letter to congressional leaders Wednesday, members of the group said they would take the action because a new report by Democrats on the House Judiciary Committee found “numerous, serious election irregularities,” particularly in Ohio, that led to “a significant disenfranchisement of voters.”

“How can we possibly tell millions of Americans who registered to vote, who came to the polls in record numbers, particularly our young people … to simply get over it and move on?” Tubbs Jones told reporters.

I suspect you’re going to hear a lot about this over the next few weeks, even though the parallels with Trump’s very real and ongoing attempt to use the Electoral College to reverse the results of the election are almost non-existent.

First, the members of Congress who objecting to counting Ohio’s electoral votes insisted explicitly that they were doing so for purely symbolic reasons, not to actually reverse the results of the election. (Ultimately 31 House members voted to exclude Ohio’s electoral votes. Only Boxer did so in the Senate, although 25 senators, many of them Republicans, abstained from voting. The final vote was 74-1).

Second, and most crucially, John Kerry explicitly rejected even this symbolic gesture:

Sen. John Kerry, the Democratic nominee for president, released a letter Wednesday saying he would not take part in the protest.

“Our legal teams on the ground have found no evidence that would change the outcome of the election,” Kerry said.

Bush won Ohio by 118,000 votes, and the election there featured a vigorous application of the normal Republican voter suppression measures — aka the real “voter fraud” that takes place in every American national election — via the corrupt interventions of Secretary of State Ken Blackwell. (Here’s a carefully reported story on what happened in Ohio in 2004. Here’s the report put together by the Democratic members and staff of the House Judiciary Committee on the same subject, which formed the basis for the objections during the Congressional certification of the vote).

Still, this is an unfortunate precedent. As a general rule, explicitly symbolic voting is a bad idea: It sends a very muddled message to argue that you don’t actually want the thing you are voting for to actually happen. That sort of symbolism thus tends to be very ineffective. This is evinced by the fact that the Congressional protest vote during the 2005 electoral certification got very little attention at the time (I checked the news data bases so this isn’t just a product of the fact that I literally either never heard about it or had forgotten about it if I had), so it did nothing to achieve its stated purpose of drawing attention to Republican voter suppression in Ohio and elsewhere.

But again, you’re going to be hearing a lot about it shortly, because it’s certain that a whole bunch of House Republicans — possibly as many as the 106 who signed onto Texas’s disgraceful joke of a lawsuit — are going to object to the certification of a whole bunch of 2020 electoral votes. The key question here is whether Mitch McConnell will be able to keep people like Ted Cruz and Josh Hawley from jumping aboard this particular downbound train, which if they do would require all the Senate and House Republicans to go on record in regard to whether they support this very non-symbolic attempt to overturn the presidential election.

Beyond this, our entire political system is devolving so quickly that it’s now conceivable that at some point in the not too distant future a Republican Congress will actually refuse to certify a Democratic candidate’s victory in the Electoral College. (Remember, it takes just a simple majority vote in both chambers to toss out an unlimited number of electoral votes. Guardrails!) ETA: In comments the aptly named CaptainBringdown points out that “conceivable” is probably far too mild a formulation, given that Republicans are learning in the context of Trump’s efforts to steal the election that their voters enthusiastically support such efforts.

All this is just the latest example of how what formerly were purely ministerial functions to which nobody paid much attention because it never occurred even to Republicans to try to game them are now turning into yet more substantive barriers to actually having something resembling democracy in this country.

Fasten your seat belts, it’s going to be a bumpy decade.

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