Cherry-Picking Hamilton

How the Hamilton Electors Are Violating Their Own Sacred Text (Federalist 68)—And Normalizing the Idea of a Coup

by John Lumea

[NOTE: The Hamilton Electors are right on the most general point that 37 Republican electors should either vote for someone other than Donald Trump or abstain, so as to bring Trump’s electoral vote tally down below 270 votes and thus deny him victory in the Electoral College.

But they are wrong about virtually everything else they’re saying and doing.

What follows is an essay about why the Hamilton Electors are wrong on principle.

For a previous essay about why the Hamilton Electors also are wrong on strategy, click here.]

:: :: ::

I mean something very specific by the word coup. Read on.

The Hamilton Electors are going rogue in more ways than one.

This group—composed primarily of seven Democratic electors from Colorado and Washington—is pushing a plan that calls on Republican electors to defect from Donald Trump; on Democratic electors to defect from Hillary Clinton; and on a threshold number of electors from both parties to unite instead around a so-called “Responsible Republican” who was not on the general-election ballot.

That last bit’s the coup part. Read on.

These electors are looking for enough defectors either to elect this unnamed off-ballot Republican outright—or at least to deny Trump (and any other candidate) the 270 electoral votes needed to win the Electoral College, an outcome that would throw the election to the House of Representatives, who would be Constitutionally mandated to elect the President from among the top three vote-getters in the Electoral College.

Each state delegation in the House would get one vote, with a simple majority of 26 votes required to elect the President.

The Constitution—in Article 2, Section 1; and in the 12th Amendment—lays out the mechanics of how the Electoral College and, if need be, the House of Representatives is to vote for President. But, apart from the familiar passage, in Article 2, Section 1, requiring that

No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.

the Constitution is mum on the qualifications for President.

Among other things, for example, Constitution has nothing to say about the popular vote. The Hamilton Electors use this Constitutional silence to advance the claim that the electors are under no obligation to give any consideration whatsoever to the national popular vote—including to the fact that Hillary Clinton has won more than 2.8M, and 2.1 percent, more votes nationally than Donald Trump.*

Alexander would not be happy with this.

O f course, the Hamilton Electors are never going to admit putting anything above the Constitution. But their real sacred text—where they claim to find the moral authority for their specific plan—is Alexander Hamilton’s Federalist Paper № 68 (Federalist 68, for short), in which Hamilton lays out his defense of the Electoral College as the best way of electing the President.

The Hamilton Electors focus on a selective group of brief passages from Hamilton’s essay, including…

From paragraph 3, this passage about the electors themselves:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

From paragraph 8, this sentence about how the President elected must be qualified:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

Also from paragraph 8, this sentence that has been construed to mean that the President elected must not be a demagogue:

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

And from paragraph 5, a line about how the President elected must be free from foreign influence, specifically:

from the desire in foreign powers to gain an improper ascendant in our councils.

BUT this last line is part of a longer passage from Federalist 68 that the Hamilton Electors don’t emphasize.

The passage shines a light on how un-Hamiltonian these electors really are.

Ironically, it was Colorado’s Republican Secretary of State who brought this up.

As part of the Hamilton Electors effort, two Democratic electors in Colorado filed a suit challenging Colorado’s law requiring electors to vote for the state’s popular vote winner, Hillary Clinton.

On Tuesday, in response to the suit, Colorado Secretary of State Wayne Williams released a statement that reads, in part:

[T]hese two faithless electors seek to conspire with electors from other states to elect a president who did not receive a single vote in November. Indeed, the very Federalist 68 they cite cautions us that “every practical obstacle should be opposed to cabal, intrigue, and corruption.” Yet that is exactly what the electors here have succumbed to: cabal, intrigue and corruption. The court should reject this illegal conspiracy….The very notion of two Colorado electors ignoring Colorado’s popular vote in an effort to sell their vote to electors in other states is odious to everything we hold dear about the right to vote.

Here’s the full passage that Williams was referring to—from paragraph 5 of Federalist 68. In the passage, Hamilton was talking about how the election itself—i.e., the election by electors in the Electoral College—was to be conducted.

Read this carefully [paragraph breaks (for readability), emphases and bracketed annotations mine]:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.

These most deadly adversaries of republican government [the “adversaries” being “cabal,intrigue and corruption”] might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils.

How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

But the convention have guarded against all danger of this sort….They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment….

[T]he immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation…afford a satisfactory prospect of their continuing so, to the conclusion of it.

The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them [the electors, that is], dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

There’s a lot that could be unpacked here.

But a good place to start is with the fact that, although Hamilton’s chief concern was with “the desire in foreign powers to gain an improper ascendant” [emphasis mine], he also recognized that “cabal, intrigue, and corruption…might naturally have been expected to make their approaches from more than one quarter” [emphasis mine].

“These most deadly adversaries of republican government” could originate from without—or from within.

The fact is, Hamilton was writing before the rise of political parties. What he envisioned was a “college” of wise individuals. He would be appalled to see how the Electoral College has degenerated into becoming a jointly and wholly owned subsidiary of two enormous political party machines, something that violates the spirit — and perhaps the letter — of his injunction against “cabal, intrigue and corruption.”

I would take this further, to suggest that Hamilton would have opposed any organized effort on the part of electors to use their positions to create Electoral College voting blocs of any kind — whether by party or on any other basis — as a violation of this injunction.

It’s one thing for electors to stand up as individuals and publicly appeal to their fellow electors to vote on this or that basis.

But, from a purely Hamiltonian perspective, the politicking of the thing — electors banding together; creating a brand, with a name (“Hamilton Electors”) and a graphic identity; going on press junkets; engaging in group advocacy and cultivating group loyalty — this may be crossing a line.

Arguably, in ignoring this, the Hamilton Electors are cherry-picking Hamilton.

To be sure, the very notion of electors pledged to their parties’ candidates might be seen to constitute “preexisting bodies of men, who [have been] tampered with beforehand to prostitute their votes.”

But, in urging Democratic and Republican electors to defect from their respective parties’ candidates and “trade” their pledged votes for a “Responsible Republican” third option, couldn’t the Hamilton Electors be said to be using the period between the general election and the Electoral College vote to create a different kind of “preexisting bod[y] of men, who [have been] tampered with beforehand to prostitute”—sell—”their votes” [Hamilton]?

Wouldn’t this body—let’s call it the Hamilton Electors— be a “combination founded upon motives” [Hamilton]?

And aren’t they—the Hamilton Electors—trying to “rais[e] a creature of their own” [Hamilton]?

Hamilton wrote that “[n]othing was more to be desired” in the election of President “than that every practicable obstacle should be opposed to cabal.”

Webster’s defines a cabal as

a number of persons secretly united to bring about an overturn or usurpation, especially in public affairs.

To be sure, the Hamilton Electors has a public face. But the “Who We Are” page on the group’s Web site refuses to name names—even of the group’s leaders whose names already are known. And one often finds the group’s leaders and members responding cagily to press questions, to the effect that they are not ready, or not at liberty, to say.

So, how, exactly, are the Hamilton Electors not a cabal?

THE Hamilton Electors rationalize their agenda by contending that the Constitution leaves them “free to vote their conscience.”

But are electors really, totally, free? Can they just pick anybody—regardless of what the popular vote says?

The answer I’m drawn to is rooted in two more passages from Federalist 68 that you’ll not hear the Hamilton Electors talking about—starting with this one from paragraph 5 [bracketed annotation mine]:

[T]he convention…have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons [electors] for the temporary and sole purpose of making the appointment.

This phrase—”an immediate act of the people of America”—points directly to Hamilton’s very first substantive point, which he makes in paragraph 2 of Federalist 68.

Referring to the election of the President by the Electoral College, Hamilton writes [emphasis and bracketed annotation mine]:

It was desirable that the sense of the people should operate in the choice of the person [the President] to whom so important a trust was to be confided. This end will be answered by committing the right of making it [the choice of the President], not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

In Hamilton’s day, it was entirely up to the “men chosen by the people” to discern what “the sense of the people” was. The names on the ballots were the names of electors—not the names of candidates.

Today, there is much less mystery about what “the sense of the people” is. It is the candidates themselves who run for office. It is candidates themselves whose names are on the ballot. And it is candidates themselves who people understand themselves to be voting for.

Are there protest votes, too? Yes.

Is there “lesser of [X] evils” voting? Yes.

But—although, yes, technically, voters are voting for a slate of electors that are pledged to vote for a given party’s presidential ticket—when a voter fills out and submits the presidential ballot, she is attaching her name to the names of the candidates themselves.

Bearing this in mind, it seems to me that the most straightforward interpretation of the electors’ obligation to the “sense of the people”—which Hamilton thought was so important that he put it at the very top of Federalist 68—is that electors are free to vote their consciences within the context of the choices for President and Vice President whose names were on the ballot.

Drawing from this list, electors should choose the candidates who offer the best balance between being qualified and fit for office and having been supported by the greatest number of popular votes. Or they should abstain.

In my view, this points to Hillary Clinton as the most principled presidential choice available to electors.

The Hamilton Electors like to say that Republican electors voting against Trump will be “patriots.” But, given the “sense of the people” reflected in the fact that Hillary Clinton won the national popular vote—by a lot—why are they not defining a vote for Clinton as a patriotic choice and calling upon these electors to swallow their party pride and help to unite the Electoral College around her?

SHORTLY after Election Day, I joined a Facebook group devoted to finding Electoral College solutions aimed at challenging Donald Trump’s claim to the presidency. Since then, the group has aligned itself with the Hamilton Electors—but, to its credit, the group continues (for the most part) to allow commentary that is critical of this project.

At one point yesterday, I commented: “You folks do realize that the Hamilton Electors basically are normalizing the idea that ‘coup by Electoral College’ is OK?”

Predictably, I got some pushback. Here’s how I responded [emphasis mine]:

Is “coup” a provocative word? Sure. It’s meant to be. But I’m not sure what else you call it (that’s why I put it in quotation marks) when a half-dozen or so temporary party functionaries plot to get 270 minus that number of their fellow temporary party functionaries to overwrite the entire general election in an effort put in office their handpicked President, who wasn’t even on the ballot.

This sets a terrible precedent. And it’s outrageous to suggest that, wherever the Constitution is silent, the Electoral College can do whatever the hell it pleases. I’m pretty sure the majority of Americans would agree with me. Otherwise, we wouldn’t have a movement to abolish the whole institution.

Please understand that the arguments being used by the Hamilton Electors — “This is an emergency.” “This is a one-time deal.” “Once this is all over, we’ll resume our regular programming” — are the same ones that were used 15 years ago to rationalize the so-called Patriot Act. But, nearly a generation later, it’s safe to say that the trampling of individual liberties put in place by that “emergency” legislation has been institutionalized and made permanent.

No one cheering on the Hamilton Electors can guarantee that future groups of electors will not bring forth their own reasons for invalidating general elections with their handpicked candidates and use the Hamilton Electors as their model.

Do I want to keep Donald Trump from becoming President? Yes. But not like this.

“Cabal, intrigue and corruption.” Alexander Hamilton is rolling in his grave.

Well, not corruption in the monetary sense. And, as Hamilton himself wrote in Federalist 68: “[M]otives [of electors] which…could not properly be denominated corrupt…might yet be of a nature to mislead them from their duty.”

But, leaving aside motive, it still could be said that—in purely descriptive terms—the Hamilton Electors have “corrupted” Hamilton’s own intent for the Electoral College.

It’s in the descriptive, objective sense that I mean for the word coup to be understood as it applies to the Hamilton Electors.

Back to Webster’s: Coup—as in coup d’etat—is defined as

a sudden decisive exercise of force in politics, especially: the violent overthrow or alteration of an existing government by a small group.

One needn’t ascribe malintent. And I don’t ascribe malintent to the Hamilton Electors.

But “violence” comes in many forms. And, if, by “an existing government,” one means not a specific Administration but, rather, something more like governance—as in, the process by which We the People govern ourselves— then I think that coup is a fair—if perhaps somewhat metaphorical—word to describe what the Hamilton Electors are doing in trying to broker as President someone who wasn’t even on the general-election ballot.

Inasmuch as the general election is the mechanism that we have for assessing the “sense of the people” of the United States as to whom should be the President, such a President—one who was not on the ballot—would have no demonstrable way of reflecting that sense.

The Hamilton Electors propose to take the candidates Americans actually voted for out of the picture and to leave in their place the idiosyncratic, hollowed-out notion, based on electoral vote projections coming out of Election Day, that the Republican Party won the election. This, in part, is how the group rationalizes its argument that the primary qualification for anyone who takes office is that they must be a Republican.

But voters don’t vote for political parties, with officeholders to be filled in later. They vote for specific candidates—and they voted for specific candidates last month.

The net effect of the Hamilton Electors’ effort to leverage an off-ballot Republican into the White House would be to break faith with the American electorate by eviscerating the whole idea of what a general election is.

This is why well-meaning people who want to help keep Donald Trump out of the White House should think twice before supporting the Hamilton Electors’ “replacement Republican” project.

Alas—and to be clear—nothing about this project is prohibited under the Constitution.

But a legal coup is still a coup—even if “only” a de facto one. The righteous end of keeping Donald Trump from becoming President does not justify any means necessary to do that.

Individual electors seeking to erode Trump’s support in the Electoral College down below the 270 votes necessary to win, by urging Republican electors either to vote for another candidate who was on the ballot—or to abstain? Yes, absolutely! (Such an effort, if successful, would not be a coup.)

Individual electors seeking to increase Clinton’s support in the Electoral College by positioning her as the most principled choice—the one who is both fit and qualified, and who actually won the most votes? Yes! (Such an effort, if successful in bringing Clinton up to the 270 she would need to win the College—this also would not be a coup.)

But a handful of electors playing God and kingmaker by trying to leverage into the Oval Office someone that no American voted for (unless by write-in)?

That looks too much like a coup—and it’s not the way to keep Trump out.

It really isn’t.

* It seems worth noting that the two co-founders of the Hamilton Electors are Democrats who supported Bernie Sanders in the primary and who—both of them—went to the press before Election Day to threaten withholding their electoral votes from Clinton.