The widely held belief that Republican electors have a legal obligation to vote for Donald Trump when they meet in their respective states on December 19 is entirely false.
In fact, the opposite is true. As Alexander Hamilton, the founding father who, in 1788, explained the purpose of our constitutional elector system in the Federalist Papers #68,
the electors were specifically created to use their independent judgment to act as a circuit breaker against exactly the sort of system rigging, foreign intrigue, and demagoguery that has brought Donald Trump to power.
This is the reason that I, as a nationally published reporter with 35 years of professional experience and a Masters degree in law for investigative journalists from Yale Law School, have joined with other politically independent citizens to launch the Electors Protect Us Campaign with this petition here.
We ask readers to share this column on their social networks, and to send it to friends and relatives throughout the country and particularly in red states. The mission of our campaign is to raise awareness among electors, and the friends and family members in their social circles who influence their opinion, about their true constitutional power—and responsibility—to uphold the public trust and preserve our great democracy.
We urge Republican electors in the states that Trump won to vote for a Already, one patriotic Republican elector has, in this eloquent public commentary, called on fellow electors to “do their job” and join him in voting for an “honorable and qualified” alternative. If only 36 more of the 306 Republican electors vote for anyone but Trump, then on January 5, then the House of Representatives will be empowered to select for our next President a qualified, constitution-abiding leader, such as Gary Johnson or Hillary Clinton.
Alexander Hamilton’s Federalist #68 was explicit in its explanation of the reasons why electors might need to vote against a presidential candidate who had won the Electoral College’s voting system. He wrote:
“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption . . . chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”
There are four legally compelling Hamilton-defined reasons that voting for Donald Trump on December 19 would violate the electors’ constitutional duty to protect our democracy. They are:
1) In his reckless disregard for our Constitution, diplomatic norms, standard business ethics, transparency protocols, moral practices and conflict of interest standards, Trump has proven himself imminently unqualified to be the President of the United States. As Hamilton wrote in describing the electors’ purpose, their independent voting power exists to provide, “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… by characters pre-eminent for ability and virtue.” Trump has certainly proven himself to be a master of marketing and vengeful winning. But he is a flat out loser when it comes to a “moral certainty” that he possesses an ability to govern or common virtue.
2) Trump’s unwillingness to fully divest from, or even divulge, in his tax returns, his many foreign assets and secret foreign loans would make him the most corruptible, inscrutable, constitution-defying American president in history. Article I, Section 9 of the Constitution stipulates that no federal office holder can receive compensation from foreign governments. Trump has repeatedly demonstrated through his actions that he is willing to betray the public trust to expand his personal wealth. He has refused to sell his foreign business holdings before taking office, even after Richard Painter, George W. Bush’s Chief Ethics counsel, stated on CNN that, “I don’t think the electoral college can vote for someone to become president if he’s going to be in violation of the Constitution on day one and hasn’t assured us he’s not in violation.”
3) Russia’s sophisticated high level hacking and distribution (through Wikileaks) of the Clinton campaign’s private emails was exactly the type of improper foreign influence and intrigue that Hamilton created the elector system to oppose. The Kremlin’s role in this hacking was officially announced through an October 7 statement by the nation’s Chief Intelligence Officer James Clapper. Clapper wrote that the hackings of the emails were associated with Russian intelligence, that they were “intended to interfere with the U.S. election process,” and that, “We believe, based on the scope and sensitivity of these efforts, that only Russia’s senior-most officials could have authorized these activities.” It is no coincidence that Wikileaks never uncovered what were likely racier emails from the Trump Administration, or Trump’s tax returns, which David Kay Johnston, America’s most distinguished tax reporter, believes would likely reveal enormous loans to Russian oligarchs. Only information that would damage Clinton and help Trump was presented to the American public through Wikileaks, based upon Russia’s successful campaign “to gain an improper ascendant in our councils.”
4) The unprecedented intervention by America’s secret police, the Federal Bureau of Investigation, to discredit Clinton only 12 days before the election seems to be just the type of secret government “cabal” that Hamilton and the founders of our republic created the elector system to oppose. Clinton herself blamed her defeat on FBI Director James Comey’s decision to defy Justice Department protocols and release what turned out to be meaningless, duplicate emails.
Even with these four compelling reasons, many electors feel that they do not have the power to cast an independent vote. They believe the false narrative that the media and political party bosses have been promoting: that electors are legally and morally bound to vote for their party’s choice.
Every prominent constitutional law expert consulted by the media in recent months, including Harvard’s Lawrence Tribe, believes that on December 19 electors are free to vote their conscience because both the U.S. Constitution, and Alexander Hamilton, the lead constitutional framer, described the voting independence of the electors as a fundamental requirement of the Electoral College system. Neither states nor the House of Representatives (which meets to count the elector votes on January 5), have the legal authority to reverse an elector’s vote.
Hamilton’s Federalist Paper #68 explained that our nation’s founding laws “have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes…And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office.”
That’s why a “preexisting body,” such as a state Republican (or Democratic) Party, cannot force an elector to vote for any specific candidate, regardless of how citizens in that state voted.
The media and political bosses of both parties have explained that the reason the Electoral College gives extra voting weight to less popular states is to make sure that the more populous states do not dominate national elections. But they have deceived the public on why electors exist to cast those votes: which is to provide a conscientious and independent circuit breaker to stop an unqualified candidate from being elected, especially with as a result of a foreign and domestic cabal-assisted contest.
From public statements made since the election, it appears that Donald Trump, like media pundits and political party bosses, now expects the American people, and our duly authorized electors, to accept the half of the Electoral College system that allows Trump to win 30% more electoral votes than Clinton despite losing the popular vote by an unprecedented 2%. At the same time, they expect Americans to ignore the equally important second purpose of the Electoral College system, which is to allow electors to vote independently as a safeguard for our democracy.
If the purpose of the Electoral College system was only to provide extra voting weight for small states, then our founders would have simply called for the national election to count the number of electoral votes from each state. There would have been no need for a separate slate of citizens to be voted in to act as electors in mid-December.
The Constitution provides the electors a very specific role that is the opposite of a rubber stamp. It specifies that electors must be independent citizens who are forbidden by law to be officials, agents or elected representatives of the federal government. According to Hamilton, the purpose of electors is this: “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.
The magnificent United States Constitution had the foresight to provide citizens with the powerful safeguard of a fully independent elector system. Its clearly expressed purpose is to protect our democracy against demagogues, despots, corruption and the influence of foreign governments.