The Case for an Electoral “Pause”

December 16, 2016
Guest Post

by Andrew W. Robertson, Acting Executive Officer of the History PhD Program, CUNY Graduate Center.  His newest forthcoming publication is The Oxford Handbook of Revolutionary Elections in the Americas, 1800-1910 (New York: Oxford University Press, 2018), ed. by Andrew W. Robertson and Eduardo Posada Carbó.  His current work in progress is Democracy in the Early Republic: America’s Other ‘Peculiar Institution’ and John L. Brooke, Distinguished Humanities Professor of American History at The Ohio State University. His current project are State Formations: Histories and Cultures of Statehood, co-edited with Julia Strauss and Greg Anderson, and Forging the Civil War North: Political Crisis, Fugitive Slaves, and Liminal Rupture in Antebellum America, 1850-1856.

On Nov. 8, Donald Trump was elected president of the United States, winning a projected 306 Electoral College votes to Hillary Clinton’s 232. The election outcome surprised many veteran campaigners, politicians, pollsters, columnists and members of the public. The election result is an extreme outlier in the history of the republic – it is one of four out of 57 presidential contests since 1789 in which the Electoral College victor has not also won the even a plurality of the vote and one of eight in which the margin was two percent or less. The Electoral College will appoint a president, on its constitutional authority as directed by the states. Now, as in 1876, 1888 and 2000, the nation should carefully consult the documents that record its governing mandate, particularly in light of other more pressing clear and present dangers. 

Perhaps the outcome of the election even surprised President-elect Trump. It is the surprises that have followed the election, however, that have pushed the U.S. to the brink of a constitutional crisis. Trump has refused to sell off his many properties around the globe or to place them in a blind trust, a situation that could place him in the position of receiving foreign emoluments.  While he initially announced that he would address potential conflicts of interest at a press conference on Dec. 15, he has now deferred any such discussion to January. Our situation is all the more complicated since Trump expressed his admiration of Vladimir Putin, the ruler of a country which for almost a century has been our country’s leading adversary. Trump has nominated for Secretary of State Rex Tillerson, the corporate chair of ExxonMobil, a company with billions of dollars at stake in the future of sanctions on Russia voted by the United States Senate. More ominously, this week the Central Intelligence Agency released its formal determination that Russian operatives had deliberately interfered in the presidential election to tilt the outcome towards Mr. Trump. The election process may have been so thoroughly compromised that public officials will need to consider whether it has been conducted fairly.  Russian interference would undermine the very legitimacy of the democratic process and could have grave and long-lasting consequences. In the words of Michael Morell, the former acting director of the CIA, this information is the “political equivalent of 9/11,” and “an existential threat to our way of life.”

There has never been such a set of circumstances surrounding a presidential election in the history of the American republic. While Congressional leaders are considering an investigation of these charges, any such inquiry would require weeks to complete. These issues raise serious questions about whether Mr. Trump is constitutionally qualified to be president. None are likely to be resolved before the Electoral College meets to vote on Dec. 19.

Over the past four decades conservative jurists have asked us to attend to the language and original meaning of the Founders. Given the absolutely unprecedented situation that we face, let us look carefully at the language regarding the Electoral College – and regarding the presidency and foreign powers – in the Constitution and in Alexander Hamilton’s contribution to the Federalist Papers. Article II, as amended by the Twelfth Amendment, stipulates that an Electoral College determined by the states, “shall meet in their respective states and vote by ballot for President.” While by custom and state law, the electors are generally bound to vote according to the popular vote in their states, this is not a constitutional requirement. Article 1, Section 9, as has been much discussed in recent months, stipulates that “no Person holding any Office of Profit or Trust” shall “accept of any present, Emolument, or Title of any kind whatsoever, from any King, Prince, or foreign State.” 

Some 2016 electors, self-styled “Hamilton electors” have already announced their plans to cast their ballots contrary to their state’s popular votes, in great measure because President-elect Trump’s global investments make him susceptible to the influence of “foreign States.” Their inspiration is Alexander Hamilton’s Federalist #68, “In Relation to the Mode of Appointment,” published during the struggle to ratify the constitution in March 1788. The Federalist Papers are widely held by historians and jurists alike as the most authoritative early commentary on the Constitution. Let us consider Hamilton’s thoughts in some detail. After describing the makeup and responsibilities of the Electoral College, Hamilton specifically discussed the role of the Electoral College as a barrier to foreign influence over the executive. 

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They … have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.

Quite simply, Hamilton’s position was this: the presidential electors have a constitutional duty to vote their conscience, if there was indeed a threat that “foreign powers” were “raising a creature of their own” to the presidency of the United States. 

The presidential election of 1800, in which Hamilton played a central role, suggests a possible solution to this impending crisis. The so-called “Revolution of 1800” is usually hailed as the first peaceful transfer of power in the United States from one democratically elected political party to another, but this celebration overlooks a different aspect of the election: the Electoral College vote ended in a tie, effectively prolonging the election process until the House of Representatives could meet to resolve the tie. We have only a few days before the Electoral College will make Donald Trump’s election a certainty. Given the very serious concerns that the nation faces in this very narrow window of time, perhaps we should think about utilizing the Electoral College to allow for a “pause” in the current election process. Pending the resolution of the election in the House of Representatives, the nation will have additional weeks to deliberate whether Donald Trump should be the next president of the United States. The presidential electors meet in their respective states on Dec. 19. Eighteen days later, on Jan. 6 at 1:00 p.m. the House of Representatives and the Senate convene in joint session with Vice President Biden presiding.  The vice president opens the votes from each state in alphabetical order. He passes the votes to four tellers—two each from the House and Senate—who announce the results. If a candidate for president receives a majority of the electoral votes, the vice president then declares the name of the next president. If no candidate receives a majority vote, then the vice president declares that a “contingent” election must be conducted by the House of Representatives, with each state having only a single vote.

In the election of 1800, Thomas Jefferson and Aaron Burr ran as the Republican candidates for president and vice president. Under the Constitution at that time, the candidate with the larger number of votes became president; the runner up became vice-president. Because of an oversight (none of the Republican electors threw away a vote) Jefferson and Burr both received 73 electoral votes. Given the tie, the election went into the House of Representatives. Burr saw his opportunity and refused to stand aside. 

Both Hamilton and Jefferson played an important role in stopping Aaron Burr from becoming president. But Hamilton and Jefferson were bitter political rivals and each acted independently to stop Burr before it was too late. Hamilton attacked Burr on his character and abilities, Jefferson on more pragmatic issues of policy. Both men directed considerable attention to one of the most critical members of the Federalist House delegation. James A. Bayard would alone cast Delaware’s vote and could decisively influence the House election. As was his wont, Hamilton launched a direct attack. Burr was “a man of extreme irregular ambition” who was “far more cunning than wise, far more dexterous than able”; and in a left-handed tribute to his foremost political adversary, he said Burr was “inferior in real ability to Jefferson.” 

Jefferson took a different approach. If Hamilton was forceful and direct, Jefferson played a substantial, though characteristically indirect part in reassuring Bayard about his policies.  Hamilton’s directness, Jefferson’s indirection and perhaps Bayard’s own misgivings paid off.  After 34 ballots for president, Bayard decided to abstain rather than vote for Burr. On the 35th ballot Jefferson was elected president and Burr was thwarted in his ambitions to win the presidency.    

What can we learn from Hamilton’s and Jefferson’s actions to prevent Aaron Burr from becoming president? We need to realize that immediate, effective constitutional action is necessary.

The Public Must Contact Republican Electors

First and foremost, there should be a strong public campaign to persuade more presidential electors not to vote for Donald Trump on Dec. 19. Republican electors can defend their action by saying they need more time to reflect on the issues that have recently arisen concerning Donald Trump’s presidency. A few – the 2016 “Hamilton electors” – have already taken this step, defending their actions by invoking the views Hamilton expressed in Federalist 68: “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.” If 37 Republican electors cast their vote for someone other than Donald Trump, after 18 days the election will proceed to the House of Representatives. If the Hamilton Electors cast ballots for a third candidate, perhaps a Republican, that person would have standing to contest the House balloting along with Hillary Clinton and Donald Trump.

We Need to Make Use of the “Pause”

Second, those who view Donald Trump’s accession to the presidency with apprehension should make use of the much-needed “pause” in the presidential trajectory afforded between Jan. 6 and Jan. 20 by the “contingent” election conducted in the House. This hold on the electoral process would allow Republican and Democratic House members additional time to reflect on concerns about Russian interference in the election and Trump’s possible violation of the emoluments clause, either of which might render him unsuitable or ineligible for office. Taking a cue from Hamilton, officeholders and shapers of public opinion could help to steer the House vote. Like Jefferson, Republicans and Democrats might work towards a compromise on basic policy. This might reassure members of both parties that whoever won the presidency would not cause a radical break in foreign policy or renegotiate the national debt. 

We can take this course now and avoid the possible subversion of our independence and destruction of our constitutional order. We can take inspiration from the fact that Founders as different as Jefferson and Hamilton were able to act decisively and expediently to avoid eminent danger. Despite their deep and abiding differences in 1801 they acted successfully to preserve the republic. We should do the same.