Trump’s “Hail Mary” Pass

This article is written by Dr. Jeffery K. Tulis, who is Professor of Government at the University of Texas at Austin and one of our regular contributors. For more about Tulis’ work, visit our Regular Contributors page.

Donald Trump has claimed that he has won the 2020 presidential election even though all the major networks and news organizations, including Fox News, projected Joe Biden to be the winner with 51% of the popular vote and 306 electoral votes. Trump filed numerous legal challenges and has attempted to pressure Republican state legislators to ignore the apparent popular vote results in battleground states and instead designate a slate of electors pledged to him. This strategy has been labeled Trump’s “Hail Mary.”

Four years ago, at this point in the electoral cycle, the same major news organizations projected Trump to win the election by the same number of electoral votes, 306.  Because Trump’s campaign was so excessively demagogic and because his actions and behavior portended a president who would abuse his power, Jeremi Suri, Sanford Levinson and I wrote an Op Ed for the New York Daily News that proposed a campaign to persuade Republican electors to vote for someone other than Trump when the Electoral College met to decide the contest. The Daily News titled our essay, “The Hail Mary Pass That Could Deny Trump the Presidency: Its Up to You Electors.”

Now, Suri, Levinson and I believe that Trump’s unprecedented behavior during the current interregnum between the election and inauguration presents a threat to the constitutional order.  We think that his attempts to thwart the process in 2020 are anti-constitutional and autocratic.  Are we hypocrites? Was our controversial argument in 2016 for conscientious electors to deny victory to the apparent winner a precedent for Trump’s argument today? Was our “Hail Mary” a precedent for Trump’s “Hail Mary?”

            I think not. 

Our argument was that Trump was unfit for office even though he had won the popular vote in sufficient states to meet the threshold for a majority of electoral college votes. We did not claim that the counting of ballots was corrupt or flawed. We did not claim that he had lost the popular votes in the states that determined the outcome. We did not claim that Hillary Clinton deserved to win because she won the national popular vote by a substantial margin.  

Rather, we claimed that the Electoral College was designed to prevent exactly the kind of outcome that Trump represented—a demagogue who would subvert the constitutional order. Although the Electoral College had long ceased to function as deliberative bodies meeting state by state, and instead had become a mere counting mechanism, the Constitution had never actually been amended. The Electoral College thus remained a viable resource to contend with the problem for which it was originally designed.  

Our essay went viral and was one of the opening salvos in what came to be a national movement known as the “Hamilton Electors” campaign. The campaign was so named to highlight Alexander Hamilton’s argument in The Federalist that the Electoral College would insure that demagogues be barred from the presidency and that foreign influence in our electoral system might be thwarted. At the time we invoked Hamilton, concerns were already pronounced that Russia had supported Trump’s election and may have colluded with his campaign.

The Electoral College had long ceased to be a set of deliberative bodies, so electors who departed from their pledges to specific candidates were called “faithless.” Most states had strong norms against such independence of judgment and political parties sought to choose prospective slates of electors who would be faithful to their pledge. Some states passed laws codifying the norm and some included punishment for violating it. We relabeled persuadable electors as “conscientious” electors. Rather than faithless to their parties, these electors would be conscientiously faithful to the Constitution. We argued that state laws that attempted to bind or punish electors were unconstitutional because provisions for the Electoral College were never amended and the institution presupposed individuals with discretion and judgment.

Because our central concern was Trump’s unfitness for office—not the veracity of the electoral count, we sought to honor the will of the voters and deny the Trump election at the same time. We urged Republican electors to vote for some Republican other than Trump to honor the policy and programmatic preferences of the voters who prevailed. For example, we suggested that they might possibly vote for Mike Pence who was on the same winning ticket.  We sought to persuade at least 37 Republican electors to vote for someone other than Trump in order to push the decision into the House of Representatives, which would vote by state delegation, the majority of which were controlled by the GOP. We also urged Democratic electors to join their GOP colleagues in voting for some Republican other than Trump, rather than for Clinton to whom they were pledged, to reinforce the point that the GOP had won the election but that Trump was unfit and dangerous.

The campaign failed to even come close to pushing the election to the House. It did, however, produce the highest number of so-called faithless electors in American history—five Democratic electors and two Republicans. Both Republicans were from Texas. Some of the Democrats had violated state law and their votes were challenged all the way to the Supreme Court which decided that states could bind their electors and could punish them for violations. Texas does not have such laws so the two conscientious electors’ votes from Texas stood. Thus, Trump did not actually obtain 306 votes in 2016 as projected. His final total was 304.  History will record that Trump’s self-described 2016 “landslide” was smaller than Biden’s 2020 victory.

One should already have a sense of how different Trump’s “Hail Mary” effort is from the one that we mounted. First, Trump is mounting a challenge on his own behalf, in his own personal interest. In our case, Clinton had conceded the election to Trump and played no part in the Hamilton Electors movement. Had the movement succeeded it would not have elevated her to the presidency. People who had supported Clinton initiated the Hamilton Electors movement, but it was not conducted on her behalf. Second, Trump is challenging the integrity of the vote count; we challenged the integrity of Trump. Earlier in the campaign season, questions were raised about Biden’s mental capacity, about whether he might have dementia. Should supporters of Trump appeal to electors to choose some Democrat other than Biden because the former Vice President is no longer fit for office that would be similar to the Hamilton Electors effort. Of course, in the debates and late stages of the campaign, Biden showed that he is mentally fit, so the claim is unwarranted. But this kind of claim would be similar to the argument we made in 2016. Third, Trump has sought to persuade partisan state legislators to appoint a slate pledged to him despite his loss of the popular vote. He is not appealing to electors to be constitutionally conscientious; he is appealing to fellow partisans to be constitutionally contemptuous.

The recent Supreme Court case on “faithless electors” makes future attempts to appeal to electors to violate their partisan pledges likely futile. In its unanimous verdict the Court decided that the constitutional provision that the state legislatures could determine the manner of choosing their electors, absent a another constitutional constraint gave them complete latitude to determine the qualifications and commitments of their electors, and to punish electors for reneging on their commitments. The court also pointed to the long history of the actual practices of the Electoral College to demonstrate that for nearly all of American political history electors have not had independent discretion, nor was the Electoral College a deliberative body.

After this recent case, American constitutional law is now clear regarding the status of so-called “faithless electors.” Constitutional law, however, now is at odds with the best understanding of the Constitution itself and seeing why helps illuminate a deeper and more pervasive problem regarding juridical approaches to constitutional understanding. The Court’s opinion on the faithless electors case illustrates the tendency of courts to elevate means over purposes. The Constitution does specify the means by which electors are to be chosen—by state legislatures given wide latitude. But it also specifies that electors be chosen—that is, an intermediate body distinct from the legislatures themselves. Why? Why have any additional body of individuals? Why not allow state legislatures to determine their allocation of votes for president by any manner they choose? One cannot account for the fact of an intermediate body without asking what its purpose is? Hamilton makes clear that the purpose of an intermediate body, like the purpose of representation more generally, is to filter popular will through a medium structured to improve or elevate it, or at a minimum to prevent popular will from subverting democracy itself. Demagogues posed the greatest threat to the presidency and to the entire constitutional order, in the argument of The Federalist. A principal purpose of the Electoral College was to prevent this possibility.

The long history of the Electoral College as a mere counting mechanism rather than as a deliberative body also supports the constitutional view that its purpose remained anti-demagogic.  When the Constitution was ratified, its proponents were critics of political parties. Political parties needed to be reinvented in America to make them supplements and enhancements to the Constitution rather than problems for constitutional sustenance. One aspect of this reinvention of parties in America was the creation of a two-party system at the presidential level. Such a system inclined candidates to be moderates, to compete for the center. And, as originally designed, the parties themselves selected the candidates rather than voters in primaries as is the case in recent decades.  

One of the main defenses for retaining an Electoral College that gives outsized influence to smaller states, and that could produce a winner that received less than a majority of the national popular vote, was that such a complex system produced better outcomes for democracy—candidates who were not demagogues. It does this with a   structure that advantages the two major parties and disadvantages third party challenges. In the Electoral College framework, it is nearly impossible for a third party to mount a viable challenge to the major parties because the winner of each state’s popular vote captures the entire allocation of Electors. For third parties to be viable they would need to aggregate support across the nation, but the structure of the Electoral College precludes this.

As Herbert Storing put it in testimony before a Senate committee considering an amendment to abolish the Electoral College, democracy is as much about outputs or outcomes as it is about inputs or process. A well functioning democracy reflects popular opinion (inputs) but also serves popular interests (outputs). A democratic majority that chooses an undemocratic autocrat would be a suicidal democracy. Until our relatively recent primary-based selection system, the non-deliberative Electoral College continued to function, in a new way, to advance the same goal or purpose as the original deliberative version. It successfully served as a gate-keeper against demagogues.

Because the parties are now polarized, the case for a two-party system is weaker than it was when both parties competed for the center. And when at least one of the parties becomes hyper-partisan, which is to say interested in gaining power at the cost of abandoning principles and ideas for which the party purportedly stands, then the two-party system no longer functions to diminish the prospects of demagogues.

Purposes, whether they be institutional purposes like that of the Electoral College, or the purposes of government as a whole as outlined in the Preamble to the Constitution, are rarely the focus of judges. Rather, judges are inclined to highlight means over ends, to attend to process over purpose.

Because Clinton lost the election of 2016 even though she won the national popular vote by millions, and because Trump came very close to winning the Electoral College even though he lost the 2020 national popular vote by many more millions, there is renewed interest today in abolishing the Electoral College. As citizens ponder how to best select our president absent an Electoral College, they would do well to engage in a broader constitutional conversation than is common for the judiciary. Citizens need to ask themselves not only how to make it more certain that a national majority prevails; they need to continue to ask, as well, how do we prevent demagogues from ascending to the nation’s highest office?

Read Greg Weiner’s response>>>

13 thoughts on “Trump’s “Hail Mary” Pass

  1. My question to you is why did you believe Trump unfit for office in 2016? What was your rationale behind this belief?

    Further, with all of the gaffs that Biden has demonstrated, why do you not believe that he has dementia? He apparently has significant osteoporosis to have broken his foot the way that it is claimed that he did?

    1. Don’t you think Trump, with his completely wild comments, and denial of the facts of his overwhelming loss 3 weeks after the election, is showing signs of dementia. He completely believes his own perpetual lies.

    2. I gave answers to both of your questions in the essay. Rather than elaborate on them — let me take the opportunity here to chart what I hope would be a productive conversation going forward. After Biden is inaugurated, it will be important to glean lessons from the past four years in order to propose reforms for the future. Such reforms need to be abstracted from partisan concerns or from ideas about specific individuals. We need to think of desirable practices not knowing who future candidates will be. In that spirit, it is perfectly reasonable to ask — how do we screen for dementia and for other possible medical problems in candidates for the presidency? Should all candidates be required to obtain physical and mental examinations from medical professionals who are civil servants at, for example, Walter Reed hospital, and should the results of those examinations be public? This is an excellent topic for civic conversation going forward.

      1. I disagree that you answered the questions in your essay. You call Trump a demagogue, which he is not, and simply say that he is “unfit” but you never say why he is unfit.

        As far as your suggestion of medical and psychologic exams for candidates, have you ever heard of HIPPA?

        If you feel there should be these tests for candidates for office, why not the same tests and transparency for academics who try to establish policy and teach our children and students?

    3. We hope the comment section to be a bit more restrained, less emotional, less off the cuff, less overtly partisan than twitter. I mentioned that I gave reasons regarding unfitness and dementia in the piece. I did. You don’t need to agree with me. Included there is a link to the original Op Ed in 2016 that has more detail on Trump’s behavior in the 2016 campaign. If you want still more detail on what I think about demagoguery in general, and Trump specifically, take a look at a book I wrote titled, The Rhetorical Presidency (the new edition in 2017). On mental and physical fitness I raised the issue of exams as a question to be debated, not as a proposition to be imposed. We require all sorts of background checks for civil servants. It is reasonable to wonder whether elected officials should be required to provide more information to voters. What sorts of privacy concerns make sense and for public officials and what not? Too much intrusion might dissuade talent from seeking office. Too little information opens the door to unfitness. These are indeed the issues that deserve to be discussed.

      1. Dr. Tulis,
        I believe the comment section on websites such as this are for opinions to be voiced and discussion to occur. Since I do not use Twitter, I have no idea if it is partisan. My comments are not emotional nor are they “off the cuff.”
        I have read your piece four times to date and I beg to differ with you. You simply state that Trump was unfit for office when he was elected. In this article, you do not provide any reasons for this belief and as such, it is simply that: your belief. You might have given reasons in your prior op-ed, however, they are not evident in this “essay.”
        I also cannot tell from your “essay” why you consider Trump to be a demagogue. If Trump was a demagogue would he not be more popular with the voters since his actions should have been done to appeal to popular desires and prejudges?
        Having a medical background, I will attest that simply because a candidate demonstrates cognitive behavior that makes him seem competent during the “late stages of the campaign” does not mean that early dementia is not present especially when there was limited public involvement of the candidate.
        As an academic, I would assume that you should know that major news networks and organizations do not determine election results and winners. As you have stated, we have an Electoral College which determines the outcome of a presidential election and they do not vote until December 14, 2020.
        Based upon your writing, you and your cohorts apparently tried to subvert the electoral process in 2016 by trying to convince electors to vote for someone other than Trump?
        As far as your suggestion of medical and psychological examinations of candidates, I did not say that you were establishing a “proposition to be imposed.” I was simply “debating” the issue as you suggested.
        I do not agree with your stance on any aspect that you addressed in this “essay.” I have read many of your other pieces, and I disagree with your stance in those also. Disagreement, however, is what constitutes debate, as long as each side will accept the difference in opinion and refrain from condescension.

      1. I am a “worshipper” of the Constitution, thus my viewing of this site.

        Simply because I want opinions to be backed by facts does not make me, or anyone else, “crazy.” Nor do my comments demonstrate a support of Trump or any other candidate.

        Dialogue can occur without insults and name calling; as a matter of fact that is called debate.

        You do not have to agree with my opinion nor do I of yours; however, respect should be given for productive intercourse to occur.

        God Bless and have a great day.

    1. I totally disagree with the elimination of the Electoral College. This would do nothing but disenfranchise the “fly-over states.”

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