A Less-Slim Chance To Stop The Trumpocalypse

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In “1 Slim Chance To Stop Trump’s War On Cleantech & The World,” I argued that Trump would be a disaster for cleantech and our planet. I suggested we all sign a petition to save us from Trumpocalypse by asking electors to change their votes and give us someone other than Trump.

In the comments, nobody argued that Trump wouldn’t be a disaster. Yet, the first comment I got was an argument that we have no right to change who won. It wouldn’t be fair to change the rules after the results were in. It could cause a civil war. Lots of readers upvoted those arguments.

I’m going to respond to those arguments here, as well as explain a new legal challenge to the absolutely un-democratic prospect of allowing 80,000 votes in swing states to “trump” 2,700,000 votes in favor of Clinton (and still increasing).

First, the electors are starting to break ranks.

A Republican elector from Texas wrote a New York Times op-ed stating he will not be voting for Trump. The elector is Christopher Suprun, a firefighter who was one of the first responders at the Pentagon on 9/11.  Mr. Suprun writes:

I do not think presidents-elect should be disqualified for policy disagreements. I do not think they should be disqualified because they won the Electoral College instead of the popular vote. However, now I am asked to cast a vote on Dec. 19 for someone who shows daily he is not qualified for the office.

…

Alexander Hamilton provided a blueprint for states’ votes. Federalist 68 argued that an Electoral College should determine if candidates are qualified, not engaged in demagogy, and independent from foreign influence. Mr. Trump shows us again and again that he does not meet these standards. Given his own public statements, it isn’t clear how the Electoral College can ignore these issues, and so it should reject him.

Suprun continues with examples to support his assertions. Go read them if you’re interested. He ends with this:

The election of the next president is not yet a done deal. Electors of conscience can still do the right thing for the good of the country. Presidential electors have the legal right and a constitutional duty to vote their conscience. I believe electors should unify behind a Republican alternative, an honorable and qualified man or woman such as Gov. John Kasich of Ohio. I pray my fellow electors will do their job and join with me in discovering who that person should be.

Fifteen years ago, I swore an oath to defend my country and Constitution against all enemies, foreign and domestic. On Dec. 19, I will do it again.

If you’d like to spread the news and push more electors to join Mr. Suprun, check this out.

Now that one elector has broken ranks, the probability of more changes to elector votes has increased. The odds that enough electors will change their vote to deny Trump the presidency are still slim, but the more that flip, the less mandate Trump will have. Flipping electors also strengthens the argument for getting rid of the electoral college and electing the president by pure, nationwide vote.

Not long after Suprun’s announcement, electors in Colorado announced plans to bring a lawsuit to change their state’s law against them voting their conscience:

The lawsuit argues that the U.S. Constitution intends for the electoral college to “be a deliberative and independent body free to cast votes for whomever they deem to be the most fit and qualified candidates.” The language of the suit also criticizes both Trump’s loss of the popular vote and his campaign in general.

“Plaintiffs believe that the Republican nominees for President and Vice-President, Donald Trump and Mike Pence, represent a unique danger to the Republic and embody the very reason why the Founders created the Electoral College,” the suit says.

One of those Colorado electors has much more to say, including:

In these conversations with fellow National Electors we have started to come to a consensus that John Kasich appears to be the emerging alternative candidate. That article also introduced the back channel discussions with the Clinton campaign regarding Democratic Electors en masse voting faithless for a Republican alternative.

Those are the published reports, what can say privately is that the iceberg is far bigger and deeper below the surface and this Electoral College is definitely in play for the full measure or the Twelfth Amendment.

Should electors really be allowed to vote their conscience?

Letting electors alter the presidency is a dangerous thing and not something I advocate lightly. James Wimberley wrote, in response to my original article:

If you want to create an organised fascist movement in the USA, denying the Presidency to Trump on the basis of the same arguments used in the campaign would be a good way to go about it. All four candidates ran on the assumption that the Electoral College decided the winner.

There is a major difficulty in deciding how far to push resistance to Trump, from the extreme shallowness and incoherence of his policy positions. It really is very different from Germany in 1933, when Hitler’s basic policies had been clear for a decade; in fact he stayed true to them till the day of his suicide. That is, it is opaque whether Trump represents a threat to the American Republic, or merely a set of terrible policies. He cannot claim a mandate for them, since they changed all the time, and he soundly lost the popular vote.

If I were American, I would concentrate on resistance for the long haul. Some possible Trump policies like a “deportation force” may call for civil disobedience. On climate and the environment, litigate everything, support state and city climate action, don’t give the fools the benefit of the doubt for their vandalism. For instance, Myron Ebell — the denialist and fossil energy lobbyist leading the transition team for the hapless EPA — lies routinely about the human responsibility for global warming: he cannot be unaware of the facts. Just because these crooks will soon have great power does not make them the equals of real experts, or even honest bloggers.

BTW, track the coal jobs. Restoring these was a clear promise by Trump, and important to his electoral success. It will fail miserably. Progressives must not be inhibited in pointing this out time and again by the fact they they accept the job losses as a necessary evil, for which miners should be compensated. Trump offers them nothing.

Based on the upvotes, it looks like many readers agree with James.  I also agree with almost everything he said. I agree that changing the election results could inspire violence. I still think it’s worth the risk. I don’t think it will provoke civil war.

My response to James ended up addressing mostly things that other commenters brought up:

I certainly agree that trying to change things could lead to violence — not so sure about civil war. However, the Trump administration will also lead to violence. Don’t know which is worse.

I disagree that using the electoral college to change the results is not playing by the rules. The founders intended the electors to discuss amongst themselves who would be best qualified to be president and to vote their conscience. There’s a long history of them rarely doing that, but the rules have always said that they can, and the founders intended them to be able to.

Given that long history I highly doubt enough electors will actually alter their votes to make a difference. The point is that the more people sign asking them to do it, and if a few of them actually do it, it highlights how unpopular Trump is and reduces his power. If electors actually do change in enough numbers to change the president elect, it will more likely lead to the House of Representatives choosing the president and we’ll still get a Republican out of it, but probably not one quite as horrible.

Performing a recount in swing states is solidly democratic. When margins are low, recounts are often done. Usually it’s republicans who force the recounts and democrats don’t want to imply there could be anything wrong with the system. I think it’s well past time we imply that. There’s been plenty of evidence in the past of tampering, and all we’re asking for here is to compare paper ballots to electronic results and see if anything doesn’t add up. Doing that in other races has found problems and led to jail time. In this case, Jill Stein has taken up the recount banner and has already raised enough money to file for recounts in Wisconsin and Pennsylvania. She still needs more money to file in Michigan by their Wed deadline: https://jillstein.nationbuilde…

The democratic process already seems pretty delegitimized to me. Republicans gerrymandered their house majority. America’s Voting Rights Act has been repealed. Voter suppression has clearly been done in this election and in past elections and will get worse without the Voting Rights Act. Purposeful manipulation of results has been found in electronic voting machine firmware in the past and California has banned certain machines on suspicion of such problems. It’s far beyond time we stop pretending there’s nothing wrong with our democracy and start talking about it and analyzing it so we can fix it.

Noah Feldman, a professor of constitutional and international law at Harvard University, brings up a similar point to James’ first paragraph in this Bloomberg article:

Start with a thought experiment: What if Donald Trump had won the popular vote and lost in the Electoral College? How would Democrats respond if prominent scholars and public figures argued that Clinton’s electors should break their pledges and elect Trump?

I’ll tell you how: Democrats would see it as an attempted coup d’etat. And they’d be right. The vote in the Electoral College has always been a formality. Its purpose is simply to effectuate the results of the electoral system we have, with all its imperfections.

Faithless electors have never determined the outcome of a presidential election, and for good reason. To do so would be to change the rules of the game in the game’s closing minutes. It would distort fairness and the rule of law.

One problem I have with that thought experiment is that Democrats have not been systematically suppressing potentially millions of votes. I believe it’s fair to change the rules of the game in the closing minutes if the whole game was rigged in the first place. It’s long past time that suppressing votes stops being rewarded with election victory because it takes too long for courts to hold anyone accountable (if they ever do). Electors were intended by our founders to have some level of autonomy in choosing the president, and there is no legal reason they should not take into consideration voter suppression and the popular vote landslide when making their choice of presidential candidate.

Another problem I have with the thought experiment is that if Trump had lost the electoral college but won the popular vote by a 2.7 million margin (far more than voter suppression could have swayed), I would not consider him fighting that decision to be an attempted coup d’etat. The minority should never be allowed to elect a president meant to represent the majority. The minority is already over-represented in the House and Senate branches of government and should not be over-represented in the choice of a President who is meant to balance the other two branches. Our system of presidential election that ignores the popular vote needs to change — if not in this election, then in the next one. Destabilizing the electoral college is one way to work towards that goal.

Yes, democracy is messy.

Lawrence Lessig, a law professor, wrote a rebuttal to all of Feldman’s arguments. The rebuttal to the thought experiment is too long for me to include here, but Lessig starts off by responding to Feldman’s question of “What if Donald Trump had won the popular vote and lost in the Electoral College?” with this:

I actually faced that question at a conference at GW School of Law in 1998  —  two years before Bush v. Gore. As I said then (wrongly, of course), if a President were selected by the electoral college against the popular will today (in 1998), there’d be “a revolution”  —  regardless of the party that prevailed. I said that then because I believed then that the constitutional norm of democratic selection was so fundamental that the people would never accept a loophole President.

Obviously, I was wrong, as George Bush’s inauguration proved.

I find it telling that the idea of electing a president not supported by the majority of voters was so un-thinkable before Bush, that many believed ignoring the popular vote would inspire a revolution. With a much wider popular-vote margin favoring Clinton (Gore only won by 543,895 votes), we should certainly be calling for revolution right now. The problem is that the kind of people who vote against Trump are generally not the kind of people who would call for violent revolution. Most Americans of any ideology don’t want violence. On the other hand, it seems easier to imagine that some segment of Trump voters that have already called for revolution might go through with it. Trump certainly urged revolution if he lost, and a lot of his supporters feared violence would happen, but few said they would participate in violence unless they felt directly attacked. So, while there may be small bands of violent protesters, I’m highly dubious there will be a full-scale civil war.

It’s important to realize that a lot of Trump voters were former Obama voters. Those voters aren’t racists and they aren’t violent. They’re just desperate for their problems to be taken seriously by politicians. They voted for Trump because he, unlike Clinton, at least claimed he was going to help them. They had to ignore his racism and sexism, hold their nose, and vote for him. I hope they are now seeing, based on Trump’s cabinet picks, how little he would actually help them, but either way, they aren’t violent revolutionaries. The violent revolutionary segment of Trump voters is much smaller.

I can’t be sure what the violent revolutionary segment would do if Trump was ousted, but I can be sure any revolution they started would be crushed. Our military has spy drones, tanks, body armor, tear gas, stun grenades, tasers, water cannons, the LRAD sound cannon, and the Active Denial System that heats skin to 130°F using microwaves. Those are just their non-lethal tools. Thanks to warrantless global surveillance, it would be very difficult to mount or maintain any sort of widespread, organized revolution. No group of revolutionaries would stand against such forces unless they managed to recruit most of the people of the country to their cause. There is no evidence that nearly enough people support revolution under Trump’s banner of racism.

Saying electors should vote for Trump or there will be violence is like giving in to any kind of terrorist. Sure, let’s ignore 2.7 million extra votes against Trump because some Trump voters carry guns.

If Trump assumes power, there will be a different kind of violence.  A violence of corruption and hatred.

• People will die from increased pollution
• From increased police shootings
• From being beaten or shot for being gay, Muslim, ethnic, or otherwise “different”
• From treatable medical conditions because their health care was taken away
• From poverty because their social security was taken away

And, let’s not forget, Trump would control that same military that could have protected us from a revolution. That military may well be turned against the majority of Americans when they try to protest Trump’s policies.

Militarized police are already hammering protesters. The brave Water Protectors at Standing Rock stood their ground for months, braving escalating police brutality that included being hosed with water cannons in freezing temperatures, shot at close range with rubber bullets (some piercing skin and leading to the death of a horse), sprayed in the face with tear gas, bloodied by attack dogs, tasered, deafened by the LRAD sound cannon (which was also reported to have caused internal bleeding), and attacked with flash grenades that maimed a woman.

Despite all that, Obama’s Justice Department never put a stop to the violence or sent observers to document it. Drones attempting to document the violence were shot down by police. Reporters were driven away and charged with trespass. If things were this bad under Obama, how would it be under Trump’s regime? I think it’s likely we would have dead protesters with the rest bodily forced off their land so the pipeline could be built. A pipeline that Trump is invested in, by the way.

Even if you don’t buy the possibility of dead protesters, there is still so much damage that Trump can do. I had some small hope that moderate Republicans would join with Democrats to block Trump’s horrifying cabinet nominations. Instead, the Republican response has been to threaten yet another government shutdown if Democrats dare to filibuster Trump’s choice of General James Mattis as secretary of defense.

So, what do we do?

Lessig gives us another legal method of stopping a Trump presidency:

Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College — because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “what about one person, one vote,” they respond, “it’s the Constitution that creates this inequality—just as with the Senate—and the Court is not going to overrule the Constitution.”

Yet that response misses a critical point.

Yes, the Constitution creates an inequality because of the way it allocates electoral college votes. A state like Wyoming, for example, gets 3 electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus, while California has a population that is 66x Wyoming, but only gets 18x the electoral college votes.

But the real inequality of the electoral college is created by the “winner take all” (WTA) rule for allocating electoral votes. WTA says that the person who wins the popular votes gets all the electoral college votes for that state. Every state (except Maine and Nebraska) allocates its electors based on WTA. But that system for allocating electoral votes is not mandated by the Constitution. It is created by the states. And so that raises what should be an obvious and much more fiercely contested question—why isn’t WTA being challenged by the Democrats in this election?

The strongest argument about why it isn’t is an argument of reliance (some people gussy this up to a point about “the rule of law” but that’s just confused rhetoric): The election was waged assuming WTA; it’s not fair now, the argument goes, to change the rule for how electors will be counted.

No doubt, it is unfair to the campaigns of Hillary Clinton and Donald Trump. They spent money in reliance on the existing system. But that’s not the only “unfairness” at stake here: What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?

It’s perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case. Delaware tried to do this exactly fifty years ago, but the Court ducked the question. But based on that complaint, were I a citizen of California, I’d ask my current AG (and future Senator) why hasn’t CA done the same thing? And were I a citizen of New York, I’d ask my AG the same. Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?

Meanwhile, as I’ve tried to get people to consider the question, I can almost feel the dynamic of their resistance. “This is beneath us,” they seem to sneer. “It’s the sort of thing only ‘they’ do.” To which the only fair response is — right, but that’s what they do, and because they did it in Bush v. Gore, that case gives Democrats the hook they need to do it now. And when people say “there would be a revolution if the Court decided this election,” why isn’t the response, “why wasn’t there a revolution when the Court effectively mandated the loser of the popular vote (Bush) had to be President?”

There is so much at stake here. So how can we go so quietly here?

Indeed, I say we should not go quietly.

You can call your Attorney General and ask them something like this:

I urge AG ____ to work with AGs in other states Clinton won to argue that the current ‘majority rules’ method for states to allocate electors violates the equal protection clause of the US Constitution and seek an immediate injunction in the US Supreme Court against the electoral college until this is remedied.

Here are numbers for the AGs:

Support electors willing to vote their conscience. This article provides a great framework for doing so, including:

• Don’t lobby electors directly. Lobby the businesses that Trump’s trade war with China will cripple.
• Contribute to an elector legal defense fund.
• Focus on what Trump has done since the election that proves he is dangerously unqualified and incompetent.

ElectoralCollegePetition lists many more actions you can take, from tweets to letters to calls.

Donate to the recount in Wisconsin, Michigan, and Pennsylvania. Michigan’s Republican Attorney General Bill Schuette and Donald Trump filed separate lawsuits with the state on Friday seeking to block recounts. It’s not yet clear if the recounts can continue given the the legal challenges, but the fact that legal challenges are being made suggests that recount efforts might uncover something Trump and friends don’t want uncovered. That’s yet another reason to support stopping him at the electoral level.

Attend protests. We went to one in Los Angeles last Sunday. We had about 400 people railing against Trump’s policies. Speakers included Kenneth Mejia, a 26-year-old “Berniecrat” who was inspired to quit his high-paying job and run for California’s 34th congressional district in a special election next year. I find his story amazing. We need more like him, and I think they’re appearing.

At one point we all shouted up at the tall, black CNN building, “CNN! Do your job!” Do I expect CNN to start reporting responsibly? Not when I was shouting it.

Did anyone expect Standing Rock to beat back an oil pipeline worth $3.7 billion? I didn’t. I thought they’d be forced to give up when things got bad enough. But I still sent them money. I still cheered them on, signed protests, and sent comments to the White House. On Dec 4th, the Army Corps of Engineers finally announced that they would deny a permit to drill under Lake Oahe until an environmental impact assessment could be done, including public comments. The pipeline has been stopped, at least for now.

The people at Standing Rock are some of the bravest Americans I’ve seen in my lifetime. They risked their lives for what was right, no matter the odds. In response to the violence of local police against the protesters, more than 3000 of America’s veterans came to protect them bodily. Those veterans later asked forgiveness for “the genocide and war crimes committed by the United States Military against tribal nations in this country.” That nearly brought tears to my eyes and it gives me hope for American values.

The Water Protectors at Standing Rock plan to remain in their camp even now, because there are many ways a president Trump could reverse the decision yet again. I say the electors need to give them an easier president to deal with.

We don’t usually win these Quixotic fights. But sometimes we do. The announcement from the Army Corps came during our L.A. protest and the cheer of joy from the crowd was so loud my ears were ringing for 10 minutes.

I hope I’ve convinced some people that we need to do whatever we can to fight the election results before they’re finalized on Dec 19th. If not, that’s fine too. This is, after all, supposed to be a democracy.

The one good thing that may come of a Trump presidency is organizational frameworks against his policies. Muslims and Jews are moving past their differences and joining together. California’s Courage Campaign is hosting organizing meetings all over my area where I’ve never seen meetings before. Even Republican newspapers and Republican electors are turning against the Donald. I still don’t want that man anywhere near the nuclear codes, but at least he’s inspired people to come together to fight and learn how much power they have when they do so.

Besides fighting, we also need to listen to both sides. Trump’s rhetoric encourages division. Van Jones calls for unity — for understanding and dialog, not the escalating us-vs-them thinking that Trump and an increasing number of liberals are promoting. Liberal and Conservative voters will always disagree on certain things, but both sides agree on freedom, lawfulness, peace, renewable energy, the golden rule, and so on. We need to find common ground and listen to one another. Van Jones gets into some great discussions in his new show, “The Messy Truth,” and I highly recommend a watch to help shatter some stereotypes. Ironically, the show is on CNN, where Van Jones has become a commentator. Is CNN actually starting to do their job? Let’s support their efforts and give it a watch.