Defying the Odds

by James W. Ceaser

  The nation’s 538 presidential electors have been thrust into the political foreground like never before in American history. In the aftermath of a uniquely polarizing presidential contest, the once-anonymous electors are squarely in the spotlight, targeted by death threats, harassing phone calls and reams of hate mail. One Texas Republican elector said he’s been bombarded with more than 200,000 emails.6

  When the electors actually met, they were greeted by last-ditch demonstrations outside numerous capitols calling on them to “say no to Trump.” In Sacramento, hundreds of Californians gathered, although their state’s Clinton electors were not key to the strategy; protestors ranged from conservative NeverTrump remnants to angry Democrats to a sizeable contingent from the Revolutionary Communists. Given that Trump was heavily criticized after the third presidential debate for declining to promise that he would accept the results of the election, it was ironic that it was ultimately his opponents who were unwilling to accept the results.

  While this turmoil was playing out—leaving open a theoretically possible but extremely unlikely scenario in which Trump would not actually become president—his transition proceeded apace and confirmed that he would be an unconventional outsider and disrupter. The week after the election, Trump removed Chris Christie as head of the transition effort, replacing him with Vice President–elect Mike Pence and signaling a major role for Pence in the administration. Trump’s initial announcement of appointments included immigration hard-liner Senator Jeff Sessions as attorney general as well as three retired generals from the armed forces, several businesspeople, a phil-anthropist known for her commitment to school vouchers, famed neurosurgeon (and former Republican primary opponent) Ben Carson, and fewer individuals than usual with prior federal administrative experience. Trump also took a courtesy phone call from the president of Taiwan, breaking four decades of U.S. policy aimed at not irritating communist China, and he brokered a deal that kept one thousand jobs at the Carrier air conditioning factory in Indiana after operations had been slated to leave for Mexico.

  Though the Carrier deal won Trump mostly positive headlines—the biggest critics were conservatives who decried his abandonment of free-market principles—the Taiwanese call and cabinet choices stirred greater controversy. The president-elect fanned partisan flames by travelling around the country to a series of in-your-face victory rallies and resumed his hard-hitting Twitter habit. Trump’s opponents doubled down on accusations that his victory was the result of Russian interference. On December 9, a secret CIA assessment was reported, not only reiterating the conclusion that Russia had been behind the hacks that eventually showed up in WikiLeaks but also concluding that Russia’s aim had “clearly” been to help Trump win the election.7 The FBI counter-intelligence division, however, was not so sure about Russia’s intent, and it was later revealed that the Republican National Committee had also been a target of Russian hackers but had warded them off with more effective cybersecurity.8 A group of computer scientists purported to show that Russia could have hacked voting machines in the crucial Rust Belt states of Pennsylvania, Michigan, and Wisconsin, though election officials and intelligence agencies found no evidence of such interference, and a variety of sources from Scientific American to The Daily Beast promptly debunked the claims.9 This campaign reached its peak when Democrats sought (unsuccessfully) to require electors to receive an intelligence briefing on Russian hacking before voting on December 19.

  Trump did little to allay concerns, getting into a Twitter snit against U.S. intelligence agencies after they issued their report—fuming that “These are the same people that said Saddam Hussein had weapons of mass destruction”—and then announcing his intent to appoint Exxon CEO Rex Tillerson, who had close business ties to Russia, as secretary of state. In response to the allegations, President Obama announced a set of economic sanctions against Russia.10 Not until January, after a partially declassified intelligence report was released to the public and the president-elect had received a confidential briefing, did Trump concede that Russia had been involved.11 Democratic concerns about the Bear, notably absent in 2012 when Obama ridiculed Mitt Romney for citing Russia as America’s most dangerous adversary, were undoubtedly a mixture of sincere concern about a troubling act of foreign interference in the U.S. political process and a partisan desire to use what was at hand to delegitimize the incoming Trump administration before it had a chance to take office.

  However, the final attempts to block Trump did not come close to succeeding, and they ended with a whimper. Stein’s recounts, undertaken either to help Clinton or to raise funds for Stein herself (it was never clear which), failed to uncover irregularities on behalf of Trump or move the results in her or Clinton’s favor. In Wisconsin, the recount ended with Trump’s lead having expanded by 131 votes;12 in Michigan, it may have exposed Democratic voter fraud before being halted by courts. Similarly, the attempt to deny Trump in the Electoral College failed to make a dent. Courts ruled against the Colorado and Washington dissidents, while John Kasich, whom the Hamilton electors had fixed on as a possible compromise candidate, declared that he was not interested: “[T]his approach, as well meaning as it is, will only serve to further divide our nation, when unity is what we need. The election is over. Now is the time for all of us to come together as Americans.”13 Although Harvard law professor Lawrence Lessig, who had briefly run for the Democratic presidential nomination, intimated a week before the vote that there might be as many as twenty Republicans prepared to jump ship,14 in the end only two Texas electors did so. One voted for former Texas congressman and presidential aspirant Ron Paul; the other chose Kasich. Five Democratic electors abandoned Clinton, four in Washington State and one in Hawaii, giving three votes to Colin Powell, one to Bernie Sanders, and one to Native American leader Faith Spotted Eagle. Three other Democratic electors tried to vote for someone other than Clinton—one each for Sanders from Minnesota and Maine and one for Kasich from Colorado—but either changed their votes to Clinton or were replaced by alternates. It was the largest number of defections from electors pledged to a living presidential candidate in U.S. history. There had been a handful of years with a larger number of faithless electors, but only in a vice-presidential contest or when the presidential nominee to whom they had been pledged died before the vote. And it was the first time since 1972 that an elector had defected from the winning side. These were all signs of the unpopularity of both of the major party nominees. In the end, all of the post-election “Stop Trump” efforts resulted in a bigger Trump lead in Wisconsin and a bigger Trump win in the Electoral College, where the final tally was 304 for Trump against 227 for Clinton. Nothing succeeds like success.

  Although the results of the election were solidified beyond even the smallest doubt, other big uncertainties remained about the future of American institutions and the future of politics and policy in the United States.

  INSTITUTIONS AND POLITICAL REFORM

  The debate about the Electoral College was, needless to say, renewed. The standard argument against it was, as always, that it allowed someone with the most nationally aggregated popular votes to lose the presidency anyway. Defenders of the Electoral College were quick to point out that the system forces candidates to reach a broad geographical coalition across the country, which Hillary Clinton did not do. Interestingly, Gallup polls taken in the aftermath of the election showed that Americans were now closely divided on the question of the Electoral College. In the late 1960s, about four in five Americans said they wanted to replace the Electoral College with a direct national popular vote. After the 2000 election, about two in three said the same thing. Following the 2016 vote, the plurality in favor of replacing the Electoral College with a national popular vote was only 49 percent to 47 percent—probably not coincidentally, almost exactly the split between the Clinton vote and the Trump vote on November 8.15 The second realization of the “plurality-loser” scenario in sixteen years did not move opinion against the Electoral College, but apparently i
t caused voters to see the issue less abstractly. The 46 percent who voted for Trump undoubtedly concluded they liked the Electoral College very much, thank you. With two-thirds of states under GOP control and only half of Americans favoring a change, the prospects of a constitutional amendment abolishing the Electoral College are virtually nonexistent.

  Efforts on behalf of the National Popular Vote Interstate Compact were revived; the compact, originated in 2006, consists of states that have agreed to give their electors to the winner of the national popular vote, and it will go into effect as soon as states with 270 electoral votes have joined. As of late 2016, ten states and the District of Columbia with 165 electoral votes had become part of the compact, but several difficulties stood in the way of the idea. One is that there is no official national popular vote, nor does there exist any mechanism to force a national recount if the national aggregated totals are very close. Another is that the Constitution requires interstate compacts to be approved by Congress; although some Supreme Court cases have suggested that only compacts touching on federal powers need to be approved, there would undoubtedly be a legal dispute on this point. Not least, only heavily Democratic states have joined the compact so far, and Republican states seem unlikely to do so. Like the more ambitious constitutional amendment it was meant to render unnecessary, this project is probably stalled.

  However, tensions over the institution may continue, or even grow, especially if Democratic support continues to be highly geographically concentrated and elections remain closely contested. Before 2000, the electoral system had only produced one clear case of the plurality loser and a handful of contestable instances.16 If it becomes commonplace, consistently favors one party over the other, and appears locked into place, it could become a major source of political discontent.

  The election of 2016 also focused attention on questions about voting mechanics. During the campaign season, Donald Trump raised concerns about voter fraud. After Election Day he amplified these concerns, claiming that he would have won the national popular vote if it were not for fraud by millions of illegal voters.17 These claims were widely ridiculed, and Trump offered no supporting evidence. This did not mean, however, that there were not real concerns around the country related to possible voter fraud. Bladen County, North Carolina, seemed to have been the epicenter of a substantial absentee ballot fraud scheme run by a Democratic-funded Political Action Committee that may have ultimately touched a total of eleven counties in that state.18 The presidential recount in Michigan revealed that 37 percent of precincts in Wayne County (Detroit) could not be recounted because their voting machines registered more votes than they should have given the number of voters signed in on the rolls, indicative of the possibility of systematic fraud.19 These episodes will doubtless increase the scrutiny of elections by those interested in more stringent ballot security, though the remedy most often proposed—voter ID requirements—would not have stopped the fraud alleged in either North Carolina or Michigan. At the same time, progressives continued to complain that voter identification laws constituted “voter suppression” aimed at young, poor, and minority voters.20

  Another voting mechanics issue was raised as a result of the rapid and frequent shifts in the race from Labor Day through Election Day. The issue was the widespread prevalence of early voting throughout the United States. In 2016, thirty-four states allowed voters to vote early with no excuse needed, either by absentee ballot or at early voting polling places. Three additional states conducted their entire election by mail ballots that were delivered to voters weeks early.21 Some states began voting as early as mid-September. Every time after October 1 that some new twist came in the story of the campaign, the question arose: How many early voters would have voted differently if they had only known the new piece of information? By October 9, when Republican officeholders were busy fleeing Trump’s apparently sinking ship, nearly half a million Americans had already voted, and commentators argued that these early votes made it impractical to replace Trump at the top of the Republican ticket.22 By October 28, when FBI Director Comey announced the reopening of the Clinton email investigation, millions had voted. Between then and November 6, when the investigation was again closed, still more had cast their ballots. Altogether, it was estimated that 40 percent of American voters voted before Election Day. Critics of early voting have long pointed to the danger that early voters forfeit the ability to take into account late-breaking developments. The 2016 election seemed to validate those concerns. Prior to 2016, some states had already moved to shorten their early voting periods. It seems likely that more will do so.

  If the Electoral College, ballot security and access, and early voting will be fertile grounds for debate after 2016, one perennial issue having to do with the structural context of elections is likely to subside after 2016: campaign finance. Ever since the Citizens United v. Federal Elections Commission and SpeechNow.com v. Federal Election Commission court decisions led to the creation of super PACs and coincided with the explosion of “outside money” in federal elections, one school of thought has seen Citizens United as an unalloyed evil facilitating the takeover of American politics by “big money.” In 2014, Senate Democrats even voted for a constitutional amendment that would have overturned Citizens United and given Congress unquestioned power to regulate campaign speech, a controversial move that drew criticism from both conservatives and the American Civil Liberties Union. If the 2016 election showed anything, though, it was the limits of “big money” in elections, even after Citizens United and Speech Now. In the Democratic primaries, Hillary Clinton outraised Bernie Sanders by a modest amount, but Sanders was still able to raise large amounts through small donors, pose a persistent challenge, and win 44 percent of the total Democratic primary vote.23 On the Republican side, Donald Trump, who had raised $67 million through mid-June, was vastly outspent by Jeb Bush ($162 million), Ted Cruz ($158 million), Marco Rubio ($125 million), and even Ben Carson ($77 million); yet he won the nomination.24 Bush raised more money for his campaign, directly or indirectly, than any other candidate in the GOP field, but dropped out after the third contest after finishing sixth in Iowa, fourth in New Hampshire, and fourth in South Carolina. Comparing Clinton and Trump through the general election, Clinton’s campaign committee spent $498 million, Trump only $248 million. Outside groups supporting Clinton spent an additional $206 million to $75 million by pro-Trump groups.25 Altogether, Clinton spent or had spent on her behalf more than twice as much money as Trump. Yet Trump won the presidency. Clinton’s champagne budget and shiraz voters fell to Trump’s beer budget with voters to match. It seems unlikely that the evils of big money will be a compelling story for (at least) the next few years.

  Americans could look to the presidential nominating system with disappointment, asking what went wrong to cause the major parties to offer the public such an unsatisfactory choice. Didn’t the parties have an incentive to put forward popular and appealing candidates? It would be a good question, but the answer was not simple. In the past, parties were able to nominate appealing candidates because there was a “party,” an organized set of office-holders and long-term party leaders who acted as trustees and managed the process with electability in mind. Institutionally, perhaps the biggest implication of the 2016 election, in both the nomination and the general election phase, was the utter triumph of one might call democratic norms against what one might call representative norms—the collapse of anything resembling mediating structures between election results and election outcomes. In the nominating phase, the biggest controversy on the Democratic side (at least until the WikiLeaks revelations that forced Debbie Wasserman Schultz out as Democratic National Committee chair) was the substantial number of superdelegates and their overwhelming preference for Hillary Clinton, even in states won soundly by Bernie Sanders. Sanders and his supporters responded by demanding reduction or elimination of the superdelegates; in the end, the Democratic National Convention Rules Committee voted to reduce the number of super
delegates by two-thirds in 2020.26 There can be no question that if Clinton’s delegate lead had rested entirely on superdele-gates, her nomination would have been seen as illegitimate by Sanders supporters and a large proportion of the American people.

  In the Republican nomination contest, there was a very real possibility for an extended period of time that no candidate would enter the national convention with a majority of delegates. A vigorous debate ensued over whether the delegates should, at that point, simply nominate the candidate with the most votes in the primaries (Trump) or the candidate they deemed best using their own judgment (Cruz, or possibly Kasich, Romney, or some undetermined option). Indeed, in state after state, Ted Cruz’s campaign used its superior organization and grasp of the rules to elect delegates who were pledged to vote for Trump on the first ballot due to primary results but would support Cruz on subsequent ballots as well as on platform or rules disputes. Even after Cruz and Kasich dropped out of the race, leaving Trump as the sole survivor, NeverTrump activists argued that delegates should be unbound and encouraged to find a more suitable standard-bearer for the Republican Party. Advocates of this position had math and history on their side. Party rules required an absolute majority of delegates to nominate. Failure by a candidate to achieve that number meant that a majority of party delegates did not support that candidate. In the abstract, it also probably meant (and, in this particular case, did mean) that a majority of party voters supported other candidates. Calling on the delegates to respond to a deadlocked convention by finding the most broadly acceptable nominee had a long and storied tradition, as did taking advantage of the rules to maximize one’s second or third ballot strength. Advocates of Trump’s position had on their side the entire democratic, plebiscitary ethos of the nominating system since the McGovern-Fraser Commission. Exit polls of GOP primary voters consistently showed that roughly two-thirds believed that if no candidate came to the convention with a majority of delegates in hand, the convention should pick the candidate with the most primary votes rather than the one they thought best.27 Most Republican voters were not willing to allow convention delegates to act as trustees even if that was the only way to avert the nomination of a minority candidate with the highest unfavorable ratings of any nominee since polling began.