Thursday, December 15, 2016

‘A different kind of merit’:
An open letter to the Electors


“... 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.”

— Alexander Hamilton

“Against the insidious wilds of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”

— from George Washington's Farewell Address, 1796


LADIES AND gentlemen: What The New York Times called “one of the most consequential analyses by American spy agencies in years” was for the Trump administration-in-waiting just another navigable speed bump on the way to the White House. "The election ended a long time ago in one of the biggest Electoral College victories in history,” Team Trump Transition said in a statesman, and mistakenly. “It’s now time to move on and ‘Make America Great Again'."

This, from The Times, is what they want to “move on” from: “Last week, Central Intelligence Agency officials presented lawmakers with a stunning new judgment that upended the debate: Russia, they said, had intervened with the primary aim of helping make Donald J. Trump president.

“The C.I.A.’s conclusion does not appear to be the product of specific new intelligence obtained since the election, several American officials, including some who had read the agency’s briefing, said on Sunday. Rather, it was an analysis of what many believe is overwhelming circumstantial evidence — evidence that others feel does not support firm judgments — that the Russians put a thumb on the scale for Mr. Trump, and got their desired outcome.”

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A few weeks back, Electors, Michael Hayden, former director of the Central Intelligence Agency and the National Security Agency, made it clearer still: “Trump had consistently refused to agree with the U.S. intelligence community's unanimous assessment that Russia was responsible for a campaign of cyber attacks and leaks against the Democratic Party, which officials said was intended to ‘interfere’ with Tuesday’s election.”

“Rejecting a fact-based intelligence assessment — not because of compelling contrarian data, but because it is inconsistent with a pre-existing worldview — that’s the stuff of ideological authoritarianism, not pragmatic democracy. And it is frightening.”

Michael Morell agrees. The former CIA director, in an interview in The Cipher Brief this past weekend, much the same assessment as Hayden about the Russian interference. “We need to see this for what it is. It is an attack on our very democracy. It’s an attack on who we are as a people. A foreign government messing around in our elections is, I think, an existential threat to our way of life. To me, and this is to me not an overstatement, this is the political equivalent of 9/11.

“In a world with so many threats and challenges facing the United States and in a city where politics and policy disputes color so many views, a President, if they’re going to be able to protect the country, they need someone to provide them with an objective, unbiased view of what’s going on in the world, and why it matters to them, and why it matters to the country. That job falls to the Intelligence Community led by the CIA, and that’s why the relationship between a President and the Intelligence Community and the CIA is so special," Morell said. “And right now that special relationship is being undermined.”

Meanwhile, NBC News reported late Wednesday that U.S. intelligence officials have a “high level of confidence” that Russian president Vladimir Putin was personally involved in the hacking of the Democratic National Committee and Clinton aide John Podesta.

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SO, ELECTORS ... can we talk here? Because it’s all ... moving ... very fast and you’re getting calls and tweets from everybody right now, but ... this really needs to be said. To all of you. This is a letter from a concerned citizen to some of the most important people in the country right now. Maybe the most important. All of you won’t take this to heart; most of you probably won’t consider this more than a last-minute desperation move from the other side. But this is bigger than that. It always was. You know it. Certainly some of you do.


We’re on a slippery slope here, even though it doesn’t feel like it, because that’s how we do big changes in America, with enough of everyday life’s narcotic special sauce on it to make that change appear to happen so slowly, so incrementally, that it feels like standing still. It doesn’t feel like change at all. You should feel as empowered, as inspired to break with the sorghum of tradition as this election was itself a break with tradition. As this election was itself a break with history.

As you know, you needn’t be influenced by the idea that you’d be leading the nation into a constitutional terra incognita. This peculiar imbalance of headcount and electoral votes? We’ve been here before.

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HAPPENED in 1824. Andrew Jackson topped John Quincy Adams in both the popular vote and Electoral College. But Jackson didn’t win enough in the College. He couldn’t muster the required 131 Electoral College votes. So the matter went to the House of Representatives, who decided for Adams, who was inaugurated as president.

It happened again in 1888, when Benjamin Harrison trailed Grover Cleveland by more than 90,000 votes in the popular count, but the Republican captured the White House with 233 Electoral College votes (at that time more than enough) to Cleveland's 168 (inadequate then and now).

And we all know what happened in 2000, Al Gore edged George W. Bush by more than 540,000 votes nationally, but the hanging chads and the Supreme Court and a win in the College settled things.

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Democrat Hillary Clinton has widened her popular-vote lead over Trump by more than 2.8 million votes. With maybe 2 million votes still to be counted from at least three states, the potential is there for Clinton to widen her lead to perhaps as many as 3 million votes before it’s all over.

You don’t have to be bound and locked into the amber of a history that would have you be comfortable with disenfranchising almost 3 million Americans. Because regardless of whether they live in a swing state or not, their votes deserve to count. The one way to be sure that happens is to endorse the power of the popular vote. Where it counts. When it counts. Like now.

Harvard Law School professor and constitutional scholar Lawrence Lessig observed as much on Tuesday in The Daily Beast: “The ‘winner take all’ rule for allocating Electoral College votes (and not required by the Constitution) radically skews the voting power of citizens, based simply upon where they live. That skew is inconsistent with the constitutional principle of one person, one vote. An elector could well justify a decision to deviate from his or her pledge and vote against Trump based on this more fundamental constitutional ideal.”

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The bigger hurdle you have to get over is the obvious one: If not Trump, then who? This is where it gets thorny for some of you.

By virtue of that big Clinton lead, Electors, you must know there's a growing chorus of citizens calling on you for place your votes for Clinton; more than 4.5 million people have signed a petition at the change.org web site making that very request.

Yeah, I know. Most of you would rather be waterboarded with Drano than do that. And so we come to the true elephant in the room: Finding the point where meaningful compromise isn’t just possible but achievable, then actionable.

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AT THIS POINT, and with ballots still coming in, Clinton has long since passed the point of making history as the presidential contender to win more of the popular vote than anyone who failed to be inaugurated.

There’s been some thought by Electors and others that the only viable, workable solution to this impasse is to conjure some tortured, Rube Goldbergian electoral contraption. They’ve proposed, for example, reaching out to a “consensus” Republican candidate” to replace Trump — Ohio’s John Kasich, say, or former Massachusetts governor Mitt Romney — taking the oath of office in January. This is implausible in a number of ways.

First, it sidesteps the presumably dispositive value of majority rule in the service of a clearly political conceit; choosing another Republican to be president only circumvents the will of the people according to the popular vote — again. It also raises the question of what makes this “consensus” choice even remotely palatable to Republicans, who found reason to dismiss Kasich in the primary season, and to dismiss Romney altogether (since he didn’t run this time). What would make that consensus candidate any more digestible to Republicans than it would be to Democrats or anyone else?

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SUCH A “consensus” candidate would likely be more unpopular than Trump. Rather than receiving the 62 million-plus votes Trump won at the polls, that Consensus Candidate would be chosen by the 538 of the College and, possibly, the Republicans in the House of Representatives.

Fewer than 1,000 Americans would decide the outcome of an election that at least 128 million Americans voted in. By definition, that's more wholly un-democratic than the outcome we have now.

Others have promoted the noble but politically unrealistic idea of a Republican president teamed for the sake of national unity with a Democratic vice president. The potential for gridlock in such a “unity tandem” would be considerable, to say the least.

The best, Occam’s-razor solution to all this — the one that's least disruptive to history or the principle of majority rule — is the one Republicans want no part of: Accede to the wishes of the majority in the election and inaugurate Hillary Clinton as the 45th president of the United States.

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Lessig weighed in Nov. 24 in The Washington Post: “Like her or not, no elector could have a good-faith reason to vote against her because of her qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.”

“We are all citizens equally. Our votes should count equally. And since nothing in our Constitution compels a decision otherwise, the electors should respect the equal vote by the people by ratifying it on Dec. 19.

“They didn’t in 1888 — when Tammany Hall ruled New York and segregation was the law of the land. And they didn’t in 2000 — when in the minds of most, the election was essentially a tie. Those are plainly precedents against Hillary Clinton.

“But the question today is which precedent should govern today — Tammany Hall and Bush v. Gore, or one person, one vote? The framers left the electors free to choose. They should exercise that choice by leaving the election as the people decided it: in Clinton’s favor.”

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SOME ARE announcing their expectation of the status quo by looking at the metric of rarity, the infrequent times through our history that Electors have broken ranks.

One journalist reporting on the election found that “In U.S. history, there have only been 157 "faithless Electors," who defy their state's vote. That's less than 1 percent, and 71 of those 157 faithless Electors changed their vote because of the death of the candidate their state had voted for.”

If that’s true, then, the consciences of the electors as a group haven’t truly been tested under fully extenuating circumstances. Almost half the so-called (and wrongly-named) “faithless Electors” up to now changed votes for the perfectly practical, defensible reason that the candidate dropped dead. There’s never been a reason to change a vote quite as good as this one is. There’s never been a test of the Electors’ consciences this big, never a challenge to their sense of civic mission this overwhelming.

And with the U.S. Supreme Court mathematically if not philosophically deadlocked, there may not be someones riding to the ostensible rescue with white hats and black robes. Like in 2000. And the stakes are higher now than they were then.

“We’re trying to be that ‘break in case of emergency’ fire hose that’s gotten dusty over the last 200 years,” maverick Elector Bret Chaifolo told Lilly O’Donnell of The Atlantic. “This is an emergency.”

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THE ELECTORAL College was created in an era when white men were the sole and presumptive existential threshold for seeking the presidency, basically the only people who could vote in the fledgling United States of America — the only people thought fit to vote in the fledgling United States of America.

That was a long damn time ago. Our society has experienced myriad social and demographic changes since then. It’s maybe never been closer to the envisioned “more perfect Union” than it is now, and the Electoral College is late to the game in recognizing that. This mathematically schizoid, needlessly bifurcated calculus for the world’s oldest participatory democracy needs to change.

It’s true, updating the pre-antebellum raison d’etre of the College for 21st-century purposes won’t happen overnight. The hard work of actually abolishing the Electoral College — the doing-away-with of what you do — is a long ways off, requiring more time and deliberation (and the continued sturdy debate as to whether it should be abolished to begin with). That process will truly be a process, long and brutal and involved — the legislative sausage-making and cat-herding that befits a proposed amendment to the Constitution of the United States. That prospect lies in the future (even though changing the “winner-take-all” rule that trumps proportional allocation doesn’t even require a constitutional amendment).

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Lessig, writing Nov. 24 in The Washington Post, observed: “The Constitution says nothing about ‘winner take all.’ It says nothing to suggest that electors’ freedom should be constrained in any way. Instead, their wisdom — about whether to overrule ‘the people’ or not — was to be free of political control yet guided by democratic values. They were to be citizens exercising judgment, not cogs turning a wheel.”

And so this, ladies and gentlemen, is something you can do, and do in the here and now. The only thing more wrong than the events and disclosures that now compel your collective corrective courage is pretending that they’re normal, acting like it’s normal for foreign powers to impact our presidential elections, acting as if it’s not important enough to investigate and to question — for this election, not some vote in the national distance.

If you turn away from it this time ... what the hell happens next time?

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IN AN op-ed in the New York Times on Dec. 5, presidential Elector and Texas paramedic Christopher Suprun explained his reasoning for refusing to vote for Trump on Dec. 19th.

“I do not think president-elects should be disqualified for policy disagreements,” Suprun writes. “I do not think they should be disqualified because they won the Electoral College instead of the popular vote. However, now I am asked to cast a vote on Dec. 19 for someone who shows daily he is not qualified for the office.”

He continues: “The United States was set up as a republic. Alexander Hamilton provided a blueprint for states’ votes. Federalist 68 argued that an Electoral College should determine if candidates are qualified, not engaged in demagogy, and independent from foreign influence. Mr. Trump shows us again and again that he does not meet these standards. Given his own public statements, it isn’t clear how the Electoral College can ignore these issues, and so it should reject him.”

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Obliquely referencing his experience as a first responder on 9/11, he wrote: “That attack and this year’s election may seem unrelated, but for me the relationship becomes clearer every day. ... The election of the next president is not yet a done deal. Electors of conscience can still do the right thing for the good of the country.”

That’s a stinging rebuke to the president-elect from one of your number. We can’t yet know how many of you feel the same way.

But soon we will. At least we hope there are “many of you.” Simply put, the future of the nation depends on it. We — you — are faced with both an opportunity and a dilemma, maybe an opportunity wrapped in a dilemma, and the leverage to alter the current and likely ruinous trajectory of the United States. This is a moment that necessarily transcends the relative convenience of partisanship.

This is an American moment, more seismic than tidal, more practical than partisan. From now until you cast your votes, in real-world terms, you command the future of the country.

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THIS IS precisely what the Electoral College was built to be: a procedural corrective for the elevation, through one bizzaro-world fluke or another, of a manifestly unprincipled, incurious, underqualified candidate to the cusp of the presidency.

Read Federalist 68:

“It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations...

“And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place...

“The process of election 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. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States."

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With this election, we’ve conceded the right to expect other nations to conduct free and fair elections, we have for now vacated that moral high ground — the engine behind the dynamic of American exceptionalism (something I assume you all still believe in). This is not irreversible; the Electors can show the world that we recognize our folly, the gravity of this unforced error, and that we mean to correct it. In the college of the world’s nations, this one ameliorative action will do a lot to restore and further global confidence in the United States.

Don’t be swayed by the progress Team Trump has made toward fully cementing itself into the institution of the presidency: Cabinet appointments made, the names to go before the Senate, the mission-creep sense of inevitability that any or all of that may have aroused in your hearts and minds. Nothing he or his advisers have done cannot be undone. They haven’t “gone too far to turn back.” And that’s not the threshold that matters anyway.

The presidency of Donald Trump is not inevitable. As some of you have already decided, there are a multitude of reasons why it shouldn’t be.

He has willfully visited on this nation a spirit of rage and ill will and a wanton disregard of traditions, customs and sensitivities that define us. He has intentionally sought to vilify his fellow-citizens at every point in the national panorama — racially, ethnically, by gender and religion, by sexual orientation and socioeconomic status.

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HE HAS engaged in willfully provocative Twitter tirades with a broad range of those and other Americans, with his thin skin always in evidence. His thresholds for receiving criticism and reacting to it are dangerously low, a disturbing prospect for his behavior in this country and on the world stage.

He remains in the pay of a major media company, and will apparently continue to do so even after the planned inauguration on Jan. 20 — an unprecedented state of affairs. And the weave of the president-elect and his far-flung foreign assets, debts and business entanglements put him, probably if not certainly, in violation of the Emoluments Clause of the United States Constitution.

He has vacated his responsibility to recognize, through personal absorption of the contents of the President’s Daily Brief, the need for his own awareness of our nation’s most acute and pressing national security concerns. He’s already taken a frighteningly cavalier approach to the intelligence briefs he needs to be an effective president.

He has flirted with the president of Russia in a way that suggests his presidential dealings with the Russians will be more transactional than geopolitical, primarily animated by finances, finances that would no doubt include his own and that of various iterations of his family business.

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HE HAS rhetorically allied himself with that foreign power, siding with Russia on the matter of whether the election itself was compromised by interference by that foreign entity. In so doing, he has ridiculed and made an adversary or worse of the very intelligence community he must rely on, alienating the agencies and operatives that protect this nation.

He has encouraged that same foreign power to hack the emails of his Democratic rival for the presidency, a stunning breach of political decorum. He has bullied and threatened the press, and proposed to advance measures to roll back the protections of the First Amendment to the Constitution, and subsequent free-speech decisions from the courts. He has exploited his position as president-elect to conduct nothing less than product placement, hustling one of his beverage products at recent meetings conducted in his current official capacity.

And he or his advisers and allies have apparently, in some sinister silky way, come at some of you very Electors with “threats of political reprisal” if you choose to “defect” and vote against the president-elect on Monday — this from “a member of the Electoral College who spoke to Salon under the condition of anonymity.”

The president-elect and his proxies aren’t above bullying and the base threat — like that levied against an employee — to get what they want. Your conscience be damned. If you needed another, better, clearer, more civically-grounded reason to vote according to those consciences next week ... you’ve got one now.

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Finally, please, don’t be distracted by that ugly historical term they have for you: “faithless electors.” Pretty harsh, I’ll admit, and given what’s at stake, it couldn’t be more wrong. To take the stand that I’m certain some of you will take — I’m praying it’s at least 37 of you 538 — is no frivolous thing.

However many you are, take pride in your principled insurgency. Your stand athwart the tide of stasis, your vote to reject the president-elect is as pivotal to the future of this nation as the sunrise is pivotal to the future itself.

The assumption has already been made in Washington, in the media and in the punditocracy, that all or most of you will agree to be sheep, obedients, captives of the past, walking in lockstep with their cynical expectations. For them, you're expected to do the usual thing, vote for party over nation and vote as if nothing was different. They’re busy characterizing absurdly long letters like this one as a “long shot” or a “hail Mary.” As if all of this was a football game or a contest of chance. As if these elections, both the popular-vote election and yours on Monday, were obligated to be a foregone conclusion. It is not.

This Electoral College and your role in what makes it important are exactly what Alexander Hamilton and the Framers intended. They couldn’t possibly envision the specifics of the challenge before you, but they certainly anticipated its contours. And you have assumed that role, one that reaches back to the origins of the United States — a role that, maybe more than any other, ensures the future of the United States.

We can't continue as the nation of our charter and our imagination if majority rule and the constitutional principle of one person-one vote are arbitrarily applied. Either they are bedrock or they are not. Either they are central to what we are — consistently central — or they are not.

If this isn't the time to call that question ... then when?

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NONE OF YOU are faithless Electors. On the contrary, your mission and the sobriety I hope you bring to it is a bright manifestation of what faith really is: not only a fixture of God and the ecclesiastical world, but also a secular metric of our reliance in evidence of things not seen — things like principle, judgment, character, empathy and what Elector Christopher Suprun identified: the ability and willingness to do that Right Thing — in this case, what is just, and fair, and moral, and true by the North Star of the majority having spoken in a regular exercise of an event meant to discern their intent for the future of this nation.

I hope that some of you, enough to make the difference, will deliberate not only on the evidence of things not seen, but also on the evidence of what we have already seen from the president-elect, and what he has provocatively, ominously promised to do starting 31 days from Monday.

In the hearts of your hearts, you know what’s at stake: everything embodied in the final words of the Declaration of Independence. It’s fallen to you to make those words meaningful in this time and place, and to recognize, individually and as a body, that the lives and fortunes and sacred honor that hang in the balance are not only those of the nation.

They are also surely your own.

Thank you.

Image credits: Anti-Trump protest: via commondreams.org. Electoral College protest wall: via The New Yorker. Adams: 1840 daguerreotype.  Clinton: Oct. 19th presidential debate pool. Lessig: Screenshot. Trump 1: CBS. Trump 2: via Slate. Trump 3: Getty Images. New York Times nameplate: ©2016 Thew New York Times Company. Hamilton: detail from the portrait by John Trumbull.  Electoral College protesters: via The Daily Beast.

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