Dear Fellow Republicans,

I've never believed in lizard people, but I'm having second thoughts watching Donald Trump thrash around like a snake caught by the head, jaws latched onto power like a Mar-a-Lago alligator in a death roll. This attempted "Loophole Coup" is also giving me second thoughts about the institutional stability of our democratic republic. I never would have expected to still be nervous about an election or concerned about a peaceful transition of power in December. Every time I exhale a sigh of relief, I find out twenty minutes later that there's another potential hurdle waiting to trip up our democracy like a track and field fail video in a Destination Fucked compilation.

Biden has been declared the winner. 😊

But there are recounts. 😐

The recounts have confirmed the initial results. 😊

But there are legal challenges. 😐

The legal challenges have failed. 😊

But Lindsay Graham is pressuring the Georgia Secretary of State to invalidate ballots. 😐

The Georgia Secretary of State has refused. 😊

But two partisans on the Michigan county canvassing board are refusing to certify the results. 😐

The partisans have been Zoom-shamed into doing their duty. 😊

But two more partisans on the Michigan state canvassing board could refuse to certify the results at the behest of the sitting president. 😐

The state results have been certified. 😊

But state legislatures could repeal state election laws, ignore the popular vote and appoint their own electors. 😐

The state electors will be appointed in accordance with the popular vote. 😊

But those electors can actually vote for whomever they choose. 😐

Faithless electors haven't changed the outcome of the election. 😊

But congress can refuse to certify any state's electoral vote on Jan 6th. 😐

The Senate has certified Joe Biden as the winner. 😊

But Vice President Pence could unilaterally decide not to tally whole slates of electors.  😐

Pence has performed his ceremonial duty.  😊

But Trump has grabbed Jill Biden as a hostage and is scaling the outside of the Empire State Building with her in one of his tiny hands. 😐

Biden is climbing into his biplane. 😊

Some people think Scarface, but I've always imagined the Trump presidency ending more like King Kong. Interesting side note: this is an actual photograph of a middle-aged Joe Biden piloting his Curtiss F8C-4 Helldiver in 1933 (third plane from the right).

But the crazy thing isn't that all this is happening now. The crazy thing is that it usually doesn't.

Evidently, "our democratic norms" have been propping up this republic in the same way that a kindergarten sculpture is held together by plastic straws, toothpicks, and Play-Doh.

It looks like we'll get away with it this time, and yes, it has been delightful to see Trump lose not just once, but nearly every day since the election. I guess he really did get sick and tired of winning-

Giuliani's hair dye. Giuliani's flatulence. Giuliani testing positive for COVID just days after encouraging a witness sitting beside him in court to take off her mask. The Four Seasons Total Landscaping press conference. Everything that comes out of Sidney Powell's mouth. Hearing conservative judges say things like, "this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state." or hearing a Trump Campaign lawyer admit during a hearing about lack of access by Republican "pole" watchers that there were actually, "a non-zero number of people in the room." to which the judge responded, "I'm sorry, then what's your problem?"

This whole post-election saga will go down as a comedy of errors in hindsight, but what about the next time it happens?

Imagine a demagogue with Trump's same power to impress stupid people, only it's someone with twice the IQ, political savvy, and the ability to focus their attention on information in non-cable-news or picture-book format for longer than ten minutes. Yes, imagine a cunning populist with a law degree, a 130 IQ, better hair, and fewer empty KFC buckets lying around the office. Could our democratic institutions have survived a competent Donald Trump?

Harvey Specter would probably be the end of us.

 

I always knew ours was a hodgepodge, legacy system, but now I'm realizing that our republic has been more or less a gentleman's handshake agreement this whole time.

This is like finding out that the bottom half of the Washington Monument is made of sugar cubes. On the one hand I'm kind of impressed that it's survived this long. On the other hand I'm now terrified because it can't possibly go on like this much longer.

Had I known then what I know now, I never would have followed that tour guide to the top. I didn't think anything of it at the time, but in hindsight, the gingerbread steps and candy cane handrail probably should have been a clue.

How have we managed to make it this far with a system where two partisan nobodies on a county board of canvassers can hold up the whole election, or a single faithless elector can change the course of history on a lark, or a state legislature can decide to disenfranchise its entire population? Either the House or Senate in D.C. can also refuse to certify the winner on January 6th per the Electoral Count Act of 1887, throwing the selection of electors back to the states' governors... probably. No one's quite sure because the provision was described as "very confused, almost unintelligible" by commentators back when the bill was passed. Modern day legal scholars use phrases such as, "invites misinterpretation," "turgid and repetitious," and "[i]ts central provisions seem contradictory." It's as if our electoral process was purposely designed to allow sleazy sore losers to insinuate themselves into every single step of the process.

Were we better citizens in the past? Is this the first time a tiny-fisted, tantrum-prone baby-man has lost an election?

I couldn't even keep people from raiding the give-a-penny-take-a-penny jar while I was restocking drinks back when I worked at the local gas station as a teenager. This entire country has been running on the honor system for nearly two hundred and fifty years.

I am impressed we have made it this far, and I think it's beautiful when all the neighbors can leave their front doors unlocked like they do in Lake Wobegon but I don't think we can continue to afford that kind of naïveté when it comes to the front doors of the White House.

A system which only functions if everyone is on their best behavior isn't fated to function for long. And take into consideration for a moment if you will, that this system is intended to curb the ambitions and foil the machinations of politicians. And a politician in turn is usually a lawyer; a professional loophole-finder whose insatiable appetite for power, control, and prestige couldn't be sated merely by wearing expensive suits, driving around in a Mercedes, and holding their clients' financial and criminal fates in the palm of their hand. In short, the egos are big and the scruples are small.

Our electoral system is supposed to control people who have come through a process that selects for the least honest & sincere, most power-hungry & charismatic candidates. It's not an accident that politicians tend to be worse-than-average people. It's an expected outcome of this process of "natural" selection. If you throw a bunch of random animals into the arctic and come back 100 million years later, the species that survive are going to have thick white fur. If you dump a bunch of people into the American political machine, the ones that survive are going to be the shameless, sociopathic liars.

Central to America's shambolic electoral system is the electoral college. The founding fathers had a really hard time deciding who should elect the president. They thought about letting the state legislatures decide. No- too prone to corruption. The states could twist the candidate's arm for special favors in return for their vote. Pennsylvania might trade its vote for a steel tarif, Maine might sells its vote for a lobster monopoly. The framers considered letting Congress select the president, or the state governors. But they ultimately decided against that for similar reasons. The only power left to appeal to was the people. But the founding fathers were wary of a direct popular vote. There were logistical issues- millions of citizens were distributed across half a continent. How could the presidential candidates present themselves to all of the voters? How could all of the voters find out enough about the candidates to cast an informed vote? Americans were an exceptionally literate lot by 18th century standards, but a full 20% of New England men couldn't read in 1776, and literacy rates were lower than that elsewhere in the new republic.

Thomas Jefferson described everyday Americans as a, "'well-meaning, but uninformed people'” who, in a nation the size of the United States, 'could have no knowledge of eminent characters and qualifications and the actual selection decision.'"

But aside from logistical issues, the purpose of the Electoral College was also to keep populist demagogues like Trump from being elected- In Federalist Paper 68 Alexander Hamilton explained his rationale for supporting the indirect election of the president, writing of the proposed electoral college, 

...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. 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.

 

The founding fathers worried that charismatic blowhards promising bread, circuses, and simple solutions to complex problems would sweep our dumb populace off their feet. They also worried about foreign powers meddling in our affairs. If an incompetent or compromised candidate won the general election, the Electoral College was supposed to be a fail-safe. The idiots would vote for the electors, the electors would be smart guys, and the smart guys would turn around and say, "I don' think so, dumbasses. The office of President will never fall to the lot of any man with a spray tan."

Think of the Electoral College as Lady Liberty's sassy gay friend, keeping her from going home drunk at the end of the night with that douchey braggart in the backwards baseball cap.

You had one job, Electoral College

Donald Trump ticked every box that could have triggered the Electoral College to overrule the popular vote, and yet for very understandable reasons, they chose not to. For starters, considering that the winning party gets to select their own electors, it's hard to imagine a candidate so bad that you couldn't find 270 people in the whole country who would go along with the idea. Satan himself could run on a platform of cannibalism, universal misery, and mandatory sodomy zones, then openly collude with North Korea to manipulate the election and you'd still be able to find 270 people who'd play along. The only circumstances under which I could imagine electors abandoning their pledges en masse would be if something insane happened between the summer party convention and December 14th which caused party leadership to turn against their own victorious candidate and appoint or explicitly instruct electors to vote against the president-elect. It would have to be an instance of self-policing from the same political party that had nominated the unfit candidate just months earlier, only unlike the nomination, they would now have the knowledge that their unfit candidate had won the general election. I think most parties are going to dance with the one who brought them, even if the one who brought them is a Russia-backed, short-fingered vulgarian.

And to be honest, I'm glad that interference from the Electoral College is neigh impossible. I don't think we want a group of 538 party elites patronizing us with disenfranchisement every so often, even if that is what the founders envisioned. It would be impossible to insulate that kind of a highly-charged political decision from personal political biases. Sure, you might have wanted to see the Electoral College refuse to elect Trump in defiance of the popular vote in their respective states, but would you feel the same way if that Electoral College refused to elect Bernie Sanders on the grounds that he was too radical or dangerous to our American values? You must remember that your guy wouldn't always be the beneficiary of an activist Electoral College.

So the Electoral College is virtually incapable of screening out bad president-elects as the founding fathers intended, and even if it were capable of doing so, it would itself be vulnerable to partisan influence and our modern democratic sensibilities would probably lead most of us to conclude that the reversal of a popular election is an anti-democratic evil and not a republic-preserving good.

But the problem is that the Electoral College and our hodgepodge election system more generally isn't just an ineffectual vestigial organ. The loopholes, archaic structures, and convoluted technicalities built into our system have the potential to actively subvert the system they were designed to sustain. While it appears that Trump will fail to convince enough Republicans to commit the extreme and democracy-breaking actions he would need to hijack a second term, the proof of concept is there. It is blatantly obvious to anyone who has come along on this wild ride, as it must have been all along to constitutional scholars and legal experts, that the potential exists for our system to be leveraged against us by any political party which has been commandeered by the very type of individual which the Electoral College was designed to bar from the presidency. It seems to me that the potential for the Electoral College to do good is virtually nil, but the potential for the Electoral College to be used as an end-around to torpedo our republic, while slight, is all too real.

Democrats have been bitching about the Electoral College since Bush beat Gore despite losing the popular vote in 2000, but I had never given those complaints much credence, because the issue most have taken with the Electoral College over the last twenty years is that it doesn't tally the votes fairly. There are a lot of ways to count votes. Is a first-past-the-post, mostly winner-take-all system on a state-by-state basis the best way? I don't know. At least there's no gerrymandering on the state level since state borders aren't redrawn every ten years. Winner-take-all means that swing states have disproportionate influence on the election and states that lean more heavily in one direction or the other have less of an impact than they otherwise would. 51% of ten million people have the same political power as 91% of ten million people. As a moderate centrist I'm not entirely opposed to limiting the impact of the most extreme and partisan states. At any rate, it's the way we've counted the votes since 1804 and anyone who comes out against the counting system right after losing reeks of sour grapes to me.

I still think the Electoral College's mathematical methodology is fine. I don't really care either way. However, I now agree with many Democrats that the Electoral College needs to go, but for different reasons.

The Electoral College and all the other loopholes, ripe for manipulation by the very types of people our political system is most likely to produce, need to be abolished. Just as there is no honor among thieves, there is no honor among politicians. So the honor system has got to go. 

This was the year that the "gentlemen" finally (but predictably) broke the gentleman's agreement and I am convinced that some of our customs and norms need to be replaced by constitutional amendments and laws. The looming specter of court packing also highlights a loophole that needs to be closed.

It's true that you can't legislate decency, and no system is so robust that it can withstand every assault from an unlimited number of bad actors... but we can do better than the shoji firewall we currently have in place.

Sincerely,

Sebastian Braff