MATTER OF TIME

Posted in Rants on May 3rd, 2015 by Ed

The first lecture I ever gave in a college classroom was about the Electoral College, and every time that topic comes up in various courses I feel a bit sentimental. If I may say so, I'm a pretty good repository of information about this arcane and ridiculous system. It's far more intricate than most people realize, although there is a very good reason most people don't realize it: none of the technicalities ever matter. In practice we go to bed on Election Night (or wake up the next morning) knowing the next president despite the fact that the actual Electors are unknown and the Electoral Votes won't be cast for more than a month. Everything after Election Day happens behind the curtain.

There are a lot of strange things that could happen under the rules of the Electoral College; they could, but they never do. An Elector could go "faithless." A state legislature could change its rules for selecting Electors. A tycoon could, in my view, offer an Elector a billion dollar check to change his vote with no legal ramifications for either party (Electors are neither elected officials nor appointed civil servants). For all its what-ifs, however, in practice the process is as dull as dishwater. Candidates and state party organizations choose electors based on unquestioned loyalty to the party and demonstrated willingness to be a good soldier.

There is one big glaring loophole, though. A fatal design flaw. And for years I've resisted writing about it because I feel like if we say its name aloud it will make it more likely to happen. But I'm sure that plenty of Republican strategists, lawyers, and conspiracy theorists have already thought of this in what could be either their finest or their darkest hour.

Here's a quick rundown on how the system unfolds. American voters don't vote for presidential candidates; they vote for a slate of Electors committed to support a candidate. A handful of states print the name of these Electors on the ballot but most do not. We vote on the first Tuesday after the first Monday in November (don't ask). Immediately thereafter, each state submits a formal list to Congress of the Electors chosen – whichever set represents the candidate who won the state's popular vote. Five or six weeks later, on the Monday after the second Wednesday in December (really, don't ask) the Electors meet in their state capitol to cast their votes formally. These are recorded by the Archivist and reported to Congress. OK. All clear so far.

The final step occurs in the first week of January, when the new Congress is sworn in and opens its session. On its first day, Congress must certify the Electoral Votes submitted by the states. This, like most parts of the process, is a rubber stamp in the modern era. Any objections made to the Electoral Vote must be in writing and signed by one Senator and one Representative. This is where everything could go to shit. As long as the Republicans have a majority in both chambers, there's no real reason they couldn't just refuse to certify the Electoral Vote. If you think that's too far-fetched I'd suggest you have not been paying close enough attention. How would they justify it? Who knows what Bircher-derived nonsense they would concoct. Texans are currently convinced that the Army is about to come and take their guns; I'm not sure there's a practical limit to their ability to delude themselves when it is to their benefit.

Objections occur rarely and are dealt with quickly. In theory, though, there is no reason either of those statements must hold in the future. A valid (signed) objection results in an immediate suspension of Congress while each chamber convenes separately to resolve the objection. I can find no evidence – certainly none in the 12th Amendment, and none in subsequent acts of Congress – that this suspension could not continue indefinitely. There's no procedure, no contingency plan, for a deadlock that cannot be resolved. It is implied that the members of Congress will come to some sort of reasonable compromise quickly.

Yeah. They wouldn't even need to dig in their heels on all 50 states in a close election, just the one or two that put the Democratic candidate over the top. Close your eyes and tell me that you can't picture it happening; that you can't see Lindsey Graham gravely telling the cameras that California's votes must be rejected because the UN and FEMA and illegal immigrants and teen welfare moms and al Qaeda and whatever other nonsense they can dream up. And tell me that you can't see half of this country buying it hook, line, and sinker.

I am a person of no particular intellectual gifts; if I could figure this out then god knows the lawyers and Dark Artists of the Beltway can figure it out. The only thing stopping anyone from trying this is common sense, restraint, and shame. Take a look at today's Congressional Republicans and let me know how much of that you see. It may not happen soon but at some point, I can guarantee you that someone will try this. If I'm not here to say I told you so, this post will have to do it for me.