Saturday, December 17, 2016

ELECTORS IN THE ELECTORAL COLLEGE HAVE THE LEGAL RIGHT TO VOTE THEIR CONSCIENCE MONDAY

- - - - - Part Two in a series - - - - -

Trumpists everywhere are certain the ballgame ended on November 8th. They think the Electoral College, which meets - - - and votes - - - on Monday, is merely a technicality. We have shown otherwise. In this article, we will expound on the proofs that Electors have the right to choose whomever they see fit as President through their role in the Electoral College.

Common sense suggests that nobody would bother to advertise this fact in major newspapers if there was no chance of it actually happening. Yet that's exactly what just happened this week in several cities in states that voted for Trump last month. The Philadelphia Inquirer, the Austin American-Statesman, the Salt Lake City Tribune, the Tampa Bay Times, the Atlanta Journal-Constitution and the Wisconsin State Journal.


The New York Times explained this week why the United States Constitution allows, or even mandates, that Electors "vote their conscience" at the Electoral College:
"As a matter of federal constitutional law, there is little basis for thinking that electors must side with their party’s candidate when that candidate carries the state. The Constitution says only that they “shall meet in their respective states and vote by ballot.” Some evidence suggests that the framers envisioned the independent judgment of electors as a check against populist passions. Alexander Hamilton, for instance, wrote that the Electoral College would allow the presidency to be decided “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.”

"Those who have been calling for electors to be “faithless” have thus ceded too much linguistic ground. Indeed, their terminology has things backward. If a member of the Electoral College sincerely believes that Mr. Trump is as awful as alleged, then for her to take a stand against him — with the eyes of the nation upon her and at significant personal risk — would be an act of profound constitutional fidelity. Thanks to the Republican elector Christopher Suprun of Texas, we have now seen what such fidelity looks like."
So common sense says the Electors have free speech and free will, and so does the New York Times. What about the lawyers? They decide everything in the end (along with judges), so what do they have to say about it? To find out, let's go to a web site designed by lawyers to be used by lawyers, FindLaw.com:
Electors as Free Agents - ''No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.'' 85 Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be men of ''superior discernment, virtue, and information,'' who would select the President ''according to their own will'' and without reference to the immediate wishes of the people.
"Electors constitutionally remain free to cast their ballots for any person they wish and occasionally they have done so. 87 A recent instance occurred when a 1968 Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the State, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast. 88 
"The power of either Congress 89 or of the States to enact legislation binding electors to vote for the candidate of the party on the ticket of which they run has been the subject of much argument. 90 It remains unsettled and the Supreme Court has touched on the issue only once and then tangentially."

Public protests are scheduled for Monday at all 50 State Capitol buildings, the locations where the Electors meet to cast their votes. It's quite a stretch to suggest that these protests are being planned for no particular purpose. Legal opinions that confirm the Electors right to choose have propelled these protests from plans to action.

Alexander Hamilton wrote many of the Federalist Papers, including #68, which details the philosophical under-pinnings of the Electoral College. In modern parlance, these represent the so-called "original-intent constitutionalism". His important vision clearly allowed for the Electors to make up their own minds and cast their vote accordingly.

Regardless of the intent and letter of the law, the right of the Electors to make their own independent votes at the Electoral College has not been fully confirmed or denied by the US Supreme Court. With that in mind, many legal scholars assert those rights as delineated by the US Constitution.

So the final chapter of the 2016 Presidential Election will be written on Monday, December 19. This represents the last legal chance to stop Trump before Inauguration Day.




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