Now that Hillary Clinton is beating Donald Trump not by the paltry 600k votes she had on election day but by more than two million the decision—not yet made as of this writing, but pretty much a sure thing—is not so much an anachronism as a fraud and a disgrace.
(But it is a delight to watch Trump call the election—that he won!—a fraud.)
It was not so pretty the last time the College went against the popular vote only sixteen years ago but at least the choice then was between two experienced politicians with records of public service. It was wrong and a mistake and the Supreme Court admitted as such when making it by declaring its decision should not be taken as a precedent but it was within the realm of reason. And how often is a thing like that likely to happen?
Now that it has happened again and so soon, it is clear that there is a flaw in the system that must be fixed. Of course, the Constitution provides a system for flaw-fixing called Amendments. But this particular flaw is not amenable to Amending. The reason is that the Amendment process requires ratification by three-quarters of the state legislatures and in this case, the flaw to be fixed would directly take power away those states who gain the most from it. No small state legislature in its right mind would vote to do that and surely not the ten or twenty, depending on how you define “small state,” it would take to reach 75%. Yet we can’t keep letting this happen.
The only choice is to go outside of the Constitution and defy the rule of law. I know this sounds rash and dangerous, but it’s as American as apple pie. It’s what the Founding Fathers did to establish the country in the first place. It’s what the Southern States did to secure slavery and what the Northern States did to end it. It’s what women did to get the vote. And trade unionists to get collective bargaining. And African-Americans to get, well, just anything even remotely considered justice. Without marches and sit-ins, arrests and even some violence, we would still have Jim Crow and women would not be allowed to vote.
How would such a workaround be accomplished? The first step is to sign the Change.com petition to get the Electors to discharge their lawful duty and reject the conman Trump, as Alexander Hamilton directed them to. They are given awesome and unchecked power; they should use it wisely, not accede blindly. I don’t expect this will happen.
The next step is for demonstrations to be organized. Spontaneous demonstrations have sprung up. They have ceased to be covered in the news media. The problem with them is they are pointless. “Not my President” is not a demand; it’s whining. I sympathize, but whining doesn’t do any good. I know. I’ve done plenty.
The important thing to remember here is that while the people do not choose the President, neither do the electors. In January, the Vice President, acting as President of the Senate in a joint session of Congress, receives the votes of the electors. The votes are counted and certified. If no candidate receives a majority of electoral votes, the Representatives choose the President themselves with each state casting one vote. The Senate chooses the Vice-President. (Yes, it could be from the party opposing the new President.) If push comes to shove, it’s the House that makes the choice that matters.
The demonstrators must demand the vote of the Electors not be certified. If legal grounds are needed, it can be argued that they Electors acted illegally by rubber-stamping their states’ votes, which has been the custom beginning only one or two elections in the earliest days of the Republic, a custom Alexander Hamilton himself excoriated. Or they could just do it because there is a large crowd outside the building demanding the Senators and Congressmen do the right thing. The vote should be called by acclamation so the servants of the people can deny responsibility to his constituents when he gets home.
The election would then go to the House which must declare the winner of the popular vote to be the President, again by acclamation, again because it is the right thing to do. And the crowds in the streets.
But first, they should pass a resolution. It should say “now and in the future the House will only recognize as valid votes by the Electors in favor of the candidate who wins the popular vote. It will continue to do so until the Constitution is amended to abolish the Electoral College and makes direct election of the President the law of the land. Furthermore, the House will not accede to or comply with any court decision altering this resolution and any votes about this resolution shall be by acclamation only” so individual legislators can’t be impeached. The Senate should pass an equivalent resolution regarding the VP.
Nothing should be easier. It asks the legislators to do the right thing. None of them will lose their seats or much power because of it. Or even have to admit what they are doing in so many words. They will be within their rights—or nearly. And it will make American great again. Or at least live up to its ideals.
Of course this is impossibly difficult. It demands people think “out of the box” and thwarts the gleeful delight of the party that hoped to reap the rewards of the illegitimate election.
That’s where the demonstrations come in. If there are people in the street, if there is coverage in the press, if there is a leader who constantly reminds everyone out there in TV land this is not about Hillary—though it is about Donald—but about correcting an error in democracy, then the movement stands a chance.