Electoral College Farce

While hardly the most compelling argument against an archaic institution, yesterday's silliness was noteworthy.

colin-powell-faith-spotted-eagle

A grand total of seven members of the Electoral College were “faithless” yesterday, casting votes for other than the candidate their state elected them to support.

In Washington, a state where Senator Bernie Sanders of Vermont had strong support in the Democratic primary against Hillary Clinton, three of the state’s 12 electoral votes went to Colin L. Powell, the Republican former secretary of state. One more elector voted for Faith Spotted Eagle, a Native American leader. Another Democratic elector in Hawaii voted for Mr. Sanders.

Two Texas electors voted for different Republican politicians: Gov. John Kasich of Ohio and former Texas congressman Ron Paul.

In addition, three Democratic electors, in Colorado, Maine and Minnesota, initially declined to vote for Mrs. Clinton. Two were replaced by an alternate, and one ended up changing his vote.

This was simultaneously a new record and, as Steven Taylor noted yesterday, somewhat comical in light of schemes to inspire enough Electors to defect to prevent Donald Trump from becoming president.

While it is ironic that more Democrats defected from Clinton than Republicans defected from Trump—and rather bizarre that three Democrats voted for Colin Powell, a nominal Republican rather than their party’s standard-bearer—this should surely be seen as yet another sign that the system has outlived its usefulness.

First off, it would simply be a Constitutional crisis of the first order were faithless Electors to overturn the results of a presidential election campaign that was carried out over nearly two years. There was no danger of that happening yesterday, of course, but it is certainly possible in a very close election. In 2000, two Electors could have flipped it to Gore. (Instead, a DC Elector for Gore decided to abstain in a futile protest over the District’s lack of congressional representation.)

Second, it’s simply farcical that people not on the ballot—indeed, people who didn’t campaign for the office at all—got votes. While the vote for Faith Spotted Eagle presumably garnered some attention for her cause, it’s simply bizarre that she got more Electoral votes than Gary Johnson and Jill Stein, combined.  Powell is a fine man and I’d certainly prefer him as president over Trump or Clinton but he didn’t run or get more than a handful of votes from actual Americans; there’s no way he should have gotten three Electoral votes. And, while John Kasich got my vote in the Republican primary and was my favorite of all the candidates who threw their hat into the ring this cycle, he didn’t come close to his party’s nomination; yet he got more Electoral votes than the likes of Ross Perot or Ralph Nader, who were fairly major third party candidates.

The fact that Hillary Clinton lost fairly decisively despite getting nearly three million more votes than Trump nationally—or that George W. Bush won in 2000 despite getting half a million fewer votes nationally than Al Gore and could have lost in 2004 with a small shift in Ohio despite getting nearly three million more votes nationally than John Kerry—are of course more compelling arguments than yesterday’s silliness. But we at least ran those contests with the state-level winner-take-all model baked into the rules at the outset. The prospect of individual Electors voting for whoever they damn well feel like is, to say the least, highly problematic given the stakes.

FILED UNDER: Campaign 2016, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Electors voting for whoever they damn well feel like is, to say the least, highly problematic given the stakes.

    Not only that, it was doomed to fail, in no small part because the laws were against it. Many states have laws that provide that faithless electors would be removed from office and replaced by alternates who would cast their ballot for the person who won the popular vote in their respective state, which has been our custom over the previous 57 Presidential elections that have taken place since 1788. With those laws, which are authorized by the Constitution at the discretion of the legislatures of the states, there was no way this idiotic scheme was ever going to succeed.

  2. James Joyner says:

    @Doug Mataconis: Sure. But, theoretically, seven faithless Electors could overturn an election. Now, of course, some of these people wouldn’t have been faithless had the contest been closer. Still, it’s just bizarre.

  3. HarvardLaw92 says:

    @Doug Mataconis:

    Not only that, it was doomed to fail, in no small part because the laws were against it. Many states have laws that provide that faithless electors would be removed from office and replaced by alternates who would cast their ballot for the person who won the popular vote in their respective state

    These laws have never been tested, primarily because they have never been employed.

    It’s worth pointing out that one of the primary goals here is precisely to attempt to goad states into testing them, in order to effect standing to get the matter before federal courts. The 10th Circuit just opined a few days ago that, while the specific matter wasn’t before them, any attempt by Colorado’s SoS to intercede by replacing a faithless elector once electoral voting had begun was likely to be unconstitutional based on the verbiage of the 12th Amendment.

    Now that he was dumb enough to do so, you can expect to see that suit be filed.

    I’ve taken more than a little derision of late based on the premise that I want to create chaos by convincing / cajoling / paying electors to change their votes in order to collapse the EC system. While that would be amusing, what I want – what I really want – is just enough of them to flip to push a state (or holy grail – several states in multiple circuits) to attempt to enforce these laws.

    You’ll never flip enough electors to change an electoral outcome IMO, but that’s tertiary to begin with. People support the EC system because – and only because – they believe that the electors are required to vote a certain way. You start getting federal rulings which – once and for all – establish otherwise, and, well, you don’t need me to tell you where it leads.

    With those laws, which are authorized by the Constitution at the discretion of the legislatures of the states,

    Sorry, but where exactly is the verbiage which authorizes a state to intercede with respect to the vote cast by an elector once that elector has been appointed by the state (which is, indeed, the only power that the Constitution actually grants to the states with respect to electors to begin with)?

  4. @HarvardLaw92:

    We can start with Article II, Section 1 Clause 2, which was not impacted by the 12th Amendment:

    Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress

    The highlighted provision quite arguably gives the states the discretion to both set the method by which Electors are chosen and the rules under which they operate, including the decision on whether or not they are bound by the outcome of the popular vote in their respective states. There is nothing in the language of the 12th Amendment that removes this discretion granted to the states or grants greater authority to Electors than what was already granted under Article II, Section One, Clause Three, which is the only part of Article II significantly amended by the 12th Amendment.

    I haven’t read the 10th Circuit opinion yet, but I’d be surprised if the ruling footnote in a ruling that the Colorado Electors ultimately lost were upheld on appeal if it ever got that far.

  5. @HarvardLaw92:

    Additionally, I’d note that the Colorado Electors lost in the 10th Circuit and that the argument you cite is merely a footnote in an Order denying their motion for a stay on enforcement of the Colorado law governing Electors.

  6. bill says:

    so i assume larry lessig’s 15 mins are over? what a stooge he is/was…..
    and ironically, the electors that flipped were against hillary by and large- and still idiotic.

  7. Hal_10000 says:

    so i assume larry lessig’s 15 mins are over? what a stooge he is/was…..

    Clearly you are new to politics. Being wrong is never an impediment to continued fame, power and attention. See, e.g., the architects of the Iraq War or Bush’s torture program.

    In fairness to Lessig, he just said that 20 GOP electors said they were “considering” voting against Trump. But, in fairness to reality, people “consider” unlikely stuff all the time. I, for example, am considering playing second base for the Braves. I haven’t completely ruled it out.

  8. Hal_10000 says:

    I don’t know much about Faith Spotted Eagle but I’d probably take her over either Trump or Clinton.

  9. Pch101 says:

    Colin Powell was one of the names being floated as an alternative to Trump. The idea was to find a Republican who could be suitable to both sides, since they were not expecting Republican electors would vote for Clinton or any other Democrat.

    These votes were cast by “Hamilton Electors” who were hoping to find some common ground with the GOP. But as usual, only one party is willing to compromise, while the other is determined to run the country into the ground when given the chance. Don’t tell me that both parties are the same, as this provides yet another example of how they clearly are not.

  10. michael reynolds says:

    It is a completely absurd institution. It adds nothing while subverting the notions of one man, one vote, and democracy in general.

    One cannot escape the fact that in the eyes of the world we look ridiculous electing a baboon who lost the popular vote by more than the total populations of Wyoming, Vermont, North Dakota and Alaska combined.

    If Nigeria were trying to tell us their people voted for Candidate X but they were electing Candidate Y because they had to give extra weight to basically rotten boroughs, we’d be talking about imposing diplomatic sanctions. We look like hypocrites and fools.

  11. @Pch101

    Why is defying the will of the voters only right when Democrats want to do it?

  12. @michael reynolds:

    Then amend the Constitution to get rid of it. Until then, engaging in absurd unworkable schemes that accomplish nothing is the political strategy of a fool.

  13. Pch101 says:

    @Doug Mataconis:

    Why did Hamilton bother to write the Federalist Papers when conservatives are so utterly shameless in their willingness to cherrypick them?

    In any case, if you’re going to talk about the “will of the voters”, then you should be demanding that Hillary Clinton become the president. That is who the voters preferred, remember?

  14. MarkedMan says:

    In the past the little thought I’ve given to the EC boiled down to: Con – subverts the will of the majority; Pro – in the case of a president revealed to be monumentally incompetent or corrupt, they could avert a crisis. But in the instance we’ve seen that even with a monumentally incompetent AND monumentally corrupt President-elect, they couldn’t act.

    It’s time for this farce to go.

    Having lived the majority of my time in blue states, which shoulder an unfair burden of taxes to support the red states, I’m not feeling particularly good willed towards the Trump nation. Put in a way the Trumponians will understand: Why should I, a hardworking blue stater, have to pay extra for a failed red state like Kansas, where the white voters consistently make bad choices only to have the blue states bail them out? Especially now that their votes count for more than mine?

  15. wr says:

    @bill: “so i assume larry lessig’s 15 mins are over? what a stooge he is/was….”

    Lawrence Lessig — Professor of Law at Harvard Law School. Member of the American Academy of Arts and Sciences. Co-founded Creative Commons. Honorary doctorates from Lund University in Sweden l’Universite Catholique de Louvain. Published nine books.

    bill — illiterate internet troll.

    And Lessig is the stooge here…

  16. Joe says:

    The prospect of individual Electors voting for whomever they damn well feel like is, to say the least, highly problematic given the stakes.

    FTFY

  17. @Pch101:

    As Justice Scalia noted, The Federalist Papers are a guide in understanding the context in which the Constitution was written. They are not, however, part of the Constitution itself, nor should they be used as a basis for ruling in a manner contrary to the text of the Constitution. Additionally, when it comes to outside sources, the various notes from the debates at the Convention, most especially Madison’s detailed notes, are a much more reliable source. \

  18. @Pch101:

    As for your question — why did Hamilton (and Maidson and Jay) write the Federalst Papers? — the answer is that they were intended primarily as political propaganda in the debate in New York over ratification of the Constitution in 1787. They were not intended to be legal treatises .

  19. @Pch101:

    if you’re going to talk about the “will of the voters”, then you should be demanding that Hillary Clinton become the president. That is who the voters preferred, remember?

    That analysis ignores current electoral and Constitutional reality, as well as the fact that we live in a nation of 300,000,000 people and fifty states in which not everything thinks the same way as the people of states such as California, which is arguably no more representative of the nation as a whole than Iowa or Kansas, taken individually, are.

  20. Scott says:

    But we at least ran those contests with the state-level winner-take-all model baked into the rules at the outset.

    Winner take all can be changed. And this worries me. We have two states, Nebraska and Maine, where this isn’t the case. It is not outside the realm of the absurd that primarily blue states (take Wisconsin, Michigan, and Pennsylvania for example) under their Republican state legislatures, decide to not be winner take all. And then red states hold firm on winner take all. There will be a Republican President for a long time.

    If you don’t think the right wing is beyond this, just look at the shenanigans in North Carolina.

  21. Pch101 says:

    @Doug Mataconis:

    If you have to cite a right-wing activist judge to prove your point, then you are inadvertently proving mine.

    The side that touts original intent doesn’t give two s**ts about it whenever it proves to be inconvenient. Which, as it turns out, is quite often.

  22. wr says:

    @Doug Mataconis: “we live in a nation of 300,000,000 people and fifty states in which not everything thinks the same way as the people of states such as California, which is arguably no more representative of the nation as a whole than Iowa or Kansas, taken individually, are.”

    But that’s not the problem here. The problem is — or is going to be — that Kansas is no more representative of the nation, and arguably is less so, since its population is dwarfed by that of California, and yet the entire country will now be governed as if it’s Kansas — despite a clear preference by more than half the voters that this not happen.

    You can keep talking about how all the Republican vote rigging and power stealing plans are legal under the constitution — and you’ll be right. But the fundamental fact underlying our government is the consent of the governed. And if more than half of the people of this country — or even if a vast majority of those living in the most populous states — start to feel that their wills are ignored in favor of a minority of right-wing fanatics, ultimately that consent can be withdrawn.

    You start to see that in the radical fringes of the Black Lives Matter movement (definitely not in its mainstream…yet) in which violent individuals refuse to recognize police officers as representatives of a system to which we all belong and start to view and treat them as armed thugs from a powerful gang.

    Again, these are outliers — outliers even in an outlier movement. But these ideas take root and grow.

    The Republicans in a lot of the country have abandoned the norms that have ruled political practice in this country. And yes, as you point out, that’s not the same as breaking the law. But if the other side starts to see an entire political system and government rigged against their perceived interests… watch out.

  23. KM says:

    Look, it basically comes down to a simple premise: what is the EC intended to do and is it doing it? If it is just there to reinforce the popular or state-level vote (as binding laws seem to indicate), then its just an unnecessary complicated step in the election process. Might as well just go to direct voting and have the popular vote be the only vote. Removing autonomy from electors and binding them to the will of voters is simply keeping the EC for appearances; it neuters any benefit of the system and just keeps it for the pageantry. That and people are too lazy to try and go for an amendment. If it exists to put some distance on the direct voting or serve as a safeguard, then faithless electors are a feature, not a bug. They should not feel beholden to anything other then their consciousnesses and the facts of the matter. No laws, fines or social guilt should be levied in an attempt to sway votes.

    I’m pro-popular vote only and have been for sometime. There’s no reason in this technological age we can’t make every vote count. It should be Election Week, not Election Day but the traditional day should be a paid federal holiday for said voters upon proof of their votes (reimbursement to those who couldn’t be spared the time). I find the EC to be one of those remnants in the Constitution we keep solely because we don’t have the political will to put effort into changing it. Every 4 years we need to re-educate the public on what it is, why their vote doesn’t really count and get red/blue state rivalries reinforced. There has to be a better way.

  24. @James:

    While it is ironic that more Democrats defected from Clinton than Republicans

    Actually, since there was less to lose (from a partisan POV), it makes sense that more Dems would defect.

  25. @Doug Mataconis:

    As for your question — why did Hamilton (and Maidson and Jay) write the Federalst Papers? — the answer is that they were intended primarily as political propaganda in the debate in New York over ratification of the Constitution in 1787. They were not intended to be legal treatises .

    You beat me to it. As interesting at the Federalist Papers are, too many people forget that they essentially were political commercials in favor a specific outcome (and that a lot of the arguments for the institutions in question were post hoc).

  26. @Pch101:

    You were the one who claimed that The Federalist Papers were something conservatives relied on in Constitutional analysis. There’s nobody better to speak to that issue than Scalia, who always made it clear that it was the text of the Constitution or statute, not outside sources, that should be the determining factor in legal analysis. I didn’t always agree with his conclusions, but that is a legal philosophy that is hard to argue with unless you believe Judges should just be allowed to base their opinions on, well, their opinions or on popular will.

  27. @Doug Mataconis:

    That analysis ignores current electoral and Constitutional reality, as well as the fact that we live in a nation of 300,000,000 people and fifty states in which not everything thinks the same way as the people of states such as California, which is arguably no more representative of the nation as a whole than Iowa or Kansas, taken individually, are.

    I am not sure how this is relevant? Are only state that are “representative” of the nation as a whole important?

    Every argument for the EC is grounded, to one degree or another, is misguided worship of the past and the assumption that the Framers had a really great idea. In other words: they are all post hoc rationalizations.

    Rather than grand political design, this was a needed political compromise so as to get the constitution ratified. Just like the compromise over the Senate, the 3/5th compromise, and the compromise on punting the debate on the slave trade until 1808.

  28. Gustopher says:

    @Doug Mataconis: The plain language of the section of the constitution you highlighted gives the states the right to decide how to appoint the electors, but says nothing about restricting the electors once appointed.

    When the Federalist Papers then explain the intent is to have the electors exercise their own judgement, I think we have to go with the plain language reading.

    Of course, there are no requirements that the electors be human beings, to the best of my knowledge. So, a state could appoint a rabid mountain lion, or a computer — the type of appointment that completely undermines the intent. (If the electors all met in one spot, a rabid mountain lion would be an awesome elector…)

  29. Scott says:

    @Doug Mataconis:

    well as the fact that we live in a nation of 300,000,000 people and fifty states in which not everything thinks the same way as the people of states such as California, which is arguably no more representative of the nation as a whole than Iowa or Kansas, taken individually, are.

    Of California can get more representation by splitting itself into, say, 6 individual states with 10 more senators and electoral votes. NY can do the same.

  30. @Gustopher:

    The plain language of the section of the constitution you highlighted gives the states the right to decide how to appoint the electors, but says nothing about restricting the electors once appointed.

    That’s simply not true. Under this language, the states could easily write a statute that accomplishes both goals — establishing the manner in which electors are appointed and allocated and setting forth the rule that the electors shall vote for the candidate winning the popular vote in their state — and be within the discretion granted by Article II Section Two Clause 2. Furthermore, there is nothing in the Constitution that gives electors the authority to defy state law. If the provision was intended to limit the authority of the states when it comes to the discretion granted to Electors then it would say so, the fact that it doesn’t argues strongly that there is no such limit and that the electors don’t have the unfettered discretion you seem to be claiming they do. This goes to Scalia’s point that it is the text of the Constitution that determines what the law is, not the Federalist Papers or any other outside source.

  31. @Steven L. Taylor:

    I am not sure how this is relevant? Are only state that are “representative” of the nation as a whole important?

    No, but the point is relevant to the arguments currently being made about the 2016 elections. Clinton’s 2.5 million vote margin can almost entirely be accounted for by the fact that she got higher than normal votes in Blue states than Democrats have gotten in the past, largely because Donald Trump was really, really unpopular with Democrats.

    On the other hand she lost three states that Democrats have won by wide margins since 1988 — Wisconsin, Michigan, and Pennsylvania — by roughly 77,000 votes. And that happened not because of outside forces but because her own campaign made mistakes such as unwisely assuming those states were safe even as Trump was aggressively campaigning there, not because of outside forces.

    As for the rest, if people want to get rid of the Electoral College then they are free to try. I remain unconvinced that it is so fundamentally flawed that radically changing the electoral system is necessary.

  32. MarkedMan says:

    @wr:

    the fundamental fact underlying our government is the consent of the governed

    I’ve always felt this was why FDR was able to get the New Deal through. The moneyed interests had near total control of the country, with monopolies able to crush competition and power and money being passed down to rent-seeking parasitic children. They owned the politicians. But they saw their compatriots in Russia being put up against the wall and shot and they thought that maybe, just maybe, it could happen here.

  33. Pch101 says:

    @Doug Mataconis:

    The Federalist provides the why for the who, what and where of the Constitution. For those who claim that we should understand the intentions of its authors, ignoring those intentions whenever and wherever it is convenient is cynical at best.

    It is very clear why there are actual human electors and not just an allocation of electoral votes granted to each state. Why go to the trouble of empowering individual electors if they weren’t intended to serve as the check and balance that Hamilton described?

  34. Jack says:

    @michael reynolds: Michael, like Hillary Clinton, can blame everyone and everything except the candidate herself. That’s no way to learn, move on, and create a better world, but it does help to create an impenetrable bubble of smugness from which one never need exit (especially when you’re as rich and priviliged—and white!—as Michael and Clinton. – Borrowed and repurposed from Nick Gillespie

  35. HarvardLaw92 says:

    @Doug Mataconis:

    The highlighted provision quite arguably gives the states the discretion to both set the method by which Electors are chosen and the rules under which they operate, including the decision on whether or not they are bound by the outcome of the popular vote in their respective states.

    It does nothing of the sort. The operative clause in that sentence is:

    “each state shall appoint”. In other words

    Each state shall appoint, in such manner as the Legislature thereof may direct,

    Article II empowers states to select electors. They get to choose HOW they select them, but that’s all the article empowers them to do. You’re interpreting the clause to imply powers which the article not only doesn’t grant to states, but which are explicitly reserved to the electors themselves by the 12th Amendment, namely:

    The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President

    Name. Not select. Name, as a verb.

    to choose somebody for a job or position

    States are not empowered to place restrictions on a federal role, and while electors may be state agents, they are performing a federal function empowered by the federal constitution. Amendment 12 gives them the power to choose. States can’t take it away from them.

  36. HarvardLaw92 says:

    and setting forth the rule that the electors shall vote for the candidate winning the popular vote in their state

    Yet again, you can’t blabber about being a textualist, then invent words which are not in the text.

    States are empowered to appoint electors. The text does not further give them power to REGULATE electors, and it certainly doesn’t empower them to revoke a direct, explicit grant.

    Electors are explicitly empowered to choose whom to vote for by the 12th Amendment. Had the authors of the amendment intended for electors to be bound to or limited by any sort of popular vote, they would have used the word “select” or they would have explicitly placed such limitations on the electors within the text which empowers them to act. They imposed no such limitation, therefore we must assume that they had no intention of imposing limits on electoral discretion (otherwise they would have done so).

    Your textualism seems to be situational.

  37. @HarvardLaw92:

    It’s amusing when people who clearly don’t care about what the text of the Constitution says or what the drafters intended, and who would support decisions that clearly contradict it, suddenly fall back on textualism to try to support an outcome they support.

    In any case, until a Court of final resort rules on the matter, which isn’t going to happen this year, this will remain a subject of argument. Perhaps your position will win, but I think there’s as much support in the text of the Constitution for the argument that Electors are not necessarily free agents if state law says otherwise.

    We’ll have plenty of opportunities to test the theory in the future since its highly unlikely that the Electoral College will be eliminated at any point in the foreseeable future.

  38. @Pch101:

    You wrongly assume that I believe that the intentions of the drafters should override what is in the text of the Constitution or statute that a Court is interpreting. That’s also not the position that Scalia took, even though it was the position most often attributed to him.

    If you’re at all interested in the subject, I would refer you to one of his last books.

  39. michael reynolds says:

    @Jack:

    Hillary beat Trump by just under 3 million votes. The American people chose Hillary and rejected Trump. The system elected Trump – a system compromised by a Russian intelligence operation.

    Trump is the legally elected president. He is not, however, the legitimate president. Locke said, “government is not legitimate unless it is carried on with the consent of the governed.” Trump does not have the consent of the governed, he has the consent of a minority of the governed, with a substantially larger number of the governed having rejected him.

    We the People of the United States voted for Hillary. Don’t ever forget that. By 3 million votes We the People chose Hillary and said no to Trump. Your corrupt, illiterate, mentally unstable cretin holds office legally. But he does not have the support, the trust or the confidence of the American people. He has zero mandate.

  40. HarvardLaw92 says:

    @Doug Mataconis:

    I’m not, and have never been, a textualist. The Constitution is not to be read like a laundry list. I’m just pointing out that you’re lauding textualism on the one hand, while adding words to the 12th Amendment on the other.

    I’m using a textualist argument to point out that 1) textualism doesn’t support your argument and 2) is, as with most every textualist I’ve ever met, situational at best.

    It’s not really textualism at all. It’s just equally selective interpretationalism.

    Short version: we interpret the text to mean what we want for it to mean.

    And so do you 🙂

  41. michael reynolds says:

    @Doug Mataconis:

    It’s amusing when people who clearly don’t care about what the text of the Constitution says or what the drafters intended, and who would support decisions that clearly contradict it, suddenly fall back on textualism to try to support an outcome they support.

    I don’t think you understand what hypocrisy is.

    I do not believe in the bible. But sometimes, in debating with people who do believe in the bible, I cite things from the bible. That does not make me a hypocrite for pointing out the inconsistencies in someone else’s faith. I do not somehow accept the bible in the process of using it against a person who does.

    The hypocrite is the person who states a belief in a principle and then fails to be consistent, not the person who points out that inconsistency.

  42. Jack says:

    @michael reynolds:

    a system compromised by a Russian intelligence operation.

    A Russian intelligence system that exposed the lies, corruption, and cover-ups of the DNC, Hillary, John Podesta, and others. In the past we would have called that “JOURNALISM”.

  43. Jack says:

    @michael reynolds:

    a system compromised by a Russian intelligence operation.

    Blaming the Russians for Hillary’s corruption and ultimate defeat is like blaming the cell phone for Anthony Wiener’s sexting.

  44. grumpy realist says:

    @wr: The main annoyance I have against Lessig is his involvement in the whole copyright term fiasco, which resulted in the present boondoggle of ridiculously long terms. Had Lessig not pushed his theory before SCOTUS, we wouldn’t have had a SCOTUS decision affirming said long terms.

  45. HarvardLaw92 says:

    @Doug Mataconis:

    Additionally, I’d note that the Colorado Electors lost in the 10th Circuit and that the argument you cite is merely a footnote in an Order denying their motion for a stay on enforcement of the Colorado law governing Electors.

    Asking seriously – do you actually practice law?

    You know how judges who aren’t permitted to tell you how to make your argument or instruct you as to which questions you should be posing get that message across anyway?

    Footnotes. This one amounts to “you’re erring in asking for prior restraint. This is the question that you should be putting before us and when you should be doing it”. They want the question. A 50 foot neon sign would have been less blatant.

  46. Pch101 says:

    @Doug Mataconis:

    You wrongly assume that I believe that the intentions of the drafters should override what is in the text of the Constitution or statute that a Court is interpreting.

    I wasn’t commenting about your position. I am noting correctly that the supposed originalists are a pack of hypocrites — they should be coming out of the woodwork to point out that electors should not just blindly follow the voters in their respective states. The originalists do not practice what they preach.

    I am not an originalist, so I don’t feel bound to follow everything that the founders wanted. However, I do endeavor to understand their intentions and at least accurately account for them, which is more than what could ever be said about Scalia.

  47. wr says:

    @grumpy realist: I’m not arguing in favor of any of his beliefs. I just happen to believe that someone who has had real, significant accomplishments in life deserves a little more respect than to be called a “stooge” by some assclown who can barely spell his own name — or the name he chooses, anyway. bill is one of those guys who is so proud of his ignorance and stupidity that he looks down on anyone who has ever done anything.

  48. Just 'nutha ig'rant cracker says:

    @Scott: So this discussion actually is framed in the context of my side didn’t win==bad election system. Good to know.

  49. Just 'nutha ig'rant cracker says:

    @wr: “and yet the entire country will now be governed as if it’s Kansas and 30 other states–”

    FTFY

  50. HarvardLaw92,

    Yes I’m well familiar with what you’re discussing. And perhaps that particular argument would be persuasive to the majority on that particular panel of the Tenth Circuit Court of Appeals. That doesn’t mean it is correct, though, or that their fellow jurists would agree with it if the argument was presented to them. In any case, since the delegates in question in Colorado apparently didn’t defect the case would now appear to be moot.

  51. michael reynolds says:

    @Jack:

    Actually, the Russian hacks gave us nothing of value on Hillary.

    And you, a supporter of the most corrupt president in modern history – even before he takes office! – really should never, ever use the word ‘corrupt’ again. Trump is going to line his pockets and those of his rapacious, billionaire cabinet.

  52. bandit says:

    @michael reynolds: I’m sure it was a tough day at the mental hospital yesterday but time moves on

  53. Stonetools says:

    There is not a single good argument to be made in favor of the Electoral College. Not one. My hope is that revulsion at the result and the coming disaster of this Administration will power a drive to eliminate this archaic compromise originally intended to keep slaveholding states in the Union. Hopefully it will soon go the way of the Three-fifths clause, with which it properly belongs.
    A poster over at LGM argues that the Democratic furor over the electoral college is best seen as part of the grieving process which all liberals are going through now. Soon we will get beyond that and prepare ourselves to resist that aszhole who will soon be entering the White House and his gang of kleptocrats and idiots.

  54. michael reynolds says:

    @bandit:

    Have you paid your million dollars to the Trump kids to get access to Trump yet? Yes, his children are selling access. That’s your president: a common hustler. And you’re the dumb-ass who got hustled.

  55. wr says:

    @Just ‘nutha ig’rant cracker: “and yet the entire country will now be governed as if it’s Kansas and 30 other states–”

    FTFY”

    Which together barely add up to the population of California.

    FTFY.

  56. bandit says:

    @michael reynolds: Time for your pills.

    Yes President Trump is my president. Say it ..President Trump. Saaaaaaaaaayyyyyyyyyyyyyyy it

  57. Guarneri says:

    A month and a half later. Still contorting the reality of a plain and simple victory for Trump the way our system works. That’s mental,illness.

    Look at the bright side, people, with Hillary put out to pasture she won’t have to avoid sniper fire anymore.

  58. bill says:

    @Hal_10000: that you allow “chronically wrong” people to lead/inform/influence you is a problem…
    worshiping those who bloviate to stay relevant, not something i’m into.

    but back to reality;
    ladies and gentlemen, the next president on the US- donald trump!

  59. al-Alameda says:

    @Guarneri:

    A month and a half later. Still contorting the reality of a plain and simple victory for Trump the way our system works. That’s mental,illness.

    I love the pontification about ‘simple victory’ and ‘the way our system works’ coming from a Republican. The very same people who manifested full-on bitterness, resentment and an enduring refusal to accept the reality and legitimacy of the Obama presidency for 8 years (and mind you, Obama actually won the popular vote twice.)

    Makes no matter though, I accept the Trump presidency in the same magnanimous spirit with which Republicans accepted the Obama presidency. Cheers.

  60. Pch101 says:

    The fact that Republicans were rushing in to claim that Ted Cruz was a natural-born citizen after spending years claiming that Obama was not made it amply clear what blatant, unapologetic hypocrites that they are.

    All of the love that they have shown as of late for Mother Russia should be even more embarrassing, but they are neither smart nor decent enough to be embarrassed.

  61. Ben Wolf says:

    @Doug Mataconis: If the situation were reversed partisan Democrats would certainly not be decrying the unfairness of the electoral college but extolling its virtues.