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Monday, November 19, 2012

On The Electoral College (Conclusion)

As I've discussed in my first two articles last week, The Electoral College was meant to act as a ‘fire break’ for uncontrolled voter frenzy and/or rule by mob, or tyranny of the masses. It can also act as a method to control a tyrant that controls the ballot boxes or someone who is elected that is wholly unqualified to be seated as President.

The Constitution provides for the matter by setting up the Electoral College vote for any time after the second Wednesday of December but before the inauguration day on January 20th following the year of election. This is so the electors can be gathered in quorum in the House of Congress and their ballots cast and be counted.  There is no federal standard for the vote casting, it has not been specified in the Constitution, and only about half the nation has individual state laws about how the electors are bound to cast.

In fact, 18 states have no laws at all, nor oaths taken. In these states, electors are free to cast their states’ ballot for whomsoever they choose.  These states though have a tradition of casting their ballot for the highest vote recipient in the popular vote.

Importantly however, in none of the 50 states, no one has ever been prosecuted for failing to vote as proscribed. Several times before, electors have gone against the popular vote. The most recent incident has been when several electors went for Reagan instead of Ford in the 1976 elector balloting. None were prosecuted despite the state of Washington having laws on the books to prevent that (since it may be impossible to prosecute due to the lack of a federal standard in a national election).  In theory, the electors could vote a significantly different direction than the popular vote.

This is what it means to live in a Republic rather than a Democracy. The popular vote does not directly apply to the choosing of government leaders.

The other possibility is that electors could simply fail to vote, thus throwing the election into the House, but the Constitution allows for that, providing alternate electors from the Senate to prevent shenanigans. Only with complete control of both houses of Congress and the popular vote could a tyrant essentially maintain power indefinitely, or be thrown out of power by failing to cast a vote. Recent calls by conservatives to oust Barack Obama focus on refusing to cast ballots in order to throw the election into a GOP house fail to mention or understand this nuance in the law. As a matter of historical fact , this HAS been tried before. In the Gore-Bush election several electors chose not to vote, however it did not affect the outcome, and alternate electors cast their vote. Abstaintion of  the vote CAN alter College counts (in theory), but problematically is unlikely to. 

In the case of Barack Obama though, argument COULD be made to the Electoral College that he is unfit for duty due to two scandals that broach the office. The first is the possibility of voter fraud in some of the inner cities, particularly Philadelphia. Although some may argue that since there were ZERO votes in many districts for Mitt Romney, the election by default is fraudulent.

Not necessarily. There are many narrowly defined and entirely ethnic districts n many inner cities. While is unlikely that he got zero votes, it’s not an impossibility. Only a significant investigation could prove it true or untrue and that is unlikely before the ballots are cast before the end of the year. To tamper with the college, flip the election and change ballots would quite possibly cause massive rioting and insurrection in most cities and people would feel cheated on their voting. The same applies to the mischaracterization of the President’s place of birth. Either of these is insufficient grounds, at this point, to go against the popular vote.

However, the issue of the incident at Benghazi is a different matter. For one, the investigation could be very brief if people are called to testify in a short period of time. This is why the Democrats are delaying testimony and discrediting witnesses (Petraeus, Allen) before their testimony. Secondly, the consequences of what may have happened are significant—the altering of documents, misrepresenting facts to congress and conspiracy to commit fraud and change facts are all felonies under Federal law. While it is not illegal to lie to the American people, covering up potential malfeasance most certainly is.

If the House were to level charges of lying, malfeasance and covering up of facts at the White House BEFORE the Electoral College met, than a legitimate case to the electors could be made. Since laws either do not exist or are unenforceable in most states regarding electors changing votes, the outcome of the election could certainly be reversed with a few states going from blue to red.

It would be far easier to change the outcome in this manner than it would through failing to cast ballots and turning the election over to the House to vote. It also would be preferable to minimize civil unrest. To change the outcome of an election merely for political purposes is anathema to good governance.

Most importantly, this would be in keeping with the original intent of the Electoral College, which is namely to prevent a criminal, a tyrant or mob tyranny from dictating who is to lead the nation, as well as promote the concept of the States themselves deciding the Presidency; not the individual electorate. James Madison, again:

The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former. Without the intervention of the State legislatures, the President of the United States cannot be elected at all. They must in all cases have a great share in his appointment, and will, perhaps, in most cases, of themselves determine it. - James Madison, Article 40, Federalist Papers.

While it’s become common practice as a matter of expediency and convenience to simply match the college vote to the popular vote, it was not intended to be an ‘automatic’ win—especially not in the case where the nation is divided and the President-elect may be under investigation.

Historical convenience is a poor reason to allow a potentially ‘broken’ candidate from assuming the highest office in the land. Thus, should investigations turn out to prove fruitful in providing evidence of malfeasance or criminality, barring the President himself voluntarily stepping down, the actions of the Electoral College may prove to be valuable, timely and in keeping with the original intent of its designed purpose—a check and balance of an over enthusiastic popular vote. It also would exclude political ideology from the Electoral College vote change. 

Let us hope they can be so forward thinking in that event, however unlikely it may happen.