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      The Electoral College Isn’t Supposed to Work This Way

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyThe Electoral College Isn’t Supposed to Work This WayThe 1887 Electoral Count Act is a clear and present danger to democracy.Trevor Potter and Mr. Potter is a former commissioner and chairman of the Federal Election Commission, appointed by President George H.W. Bush, and the founder and president of the Campaign Legal Center. Mr. Fried was the solicitor general under President Ronald Reagan and serves on the board of the Campaign Legal Center.Jan. 6, 2021, 5:00 a.m. ETRep. Louie Gohmert with members of the House Freedom Caucus in December.Credit…Al Drago for The New York TimesThe 2020 presidential election has been a disaster for people who think the Electoral College is still a good idea. Joe Biden’s clear victory has been followed by attempts by the incumbent president to induce Republican legislators and other elected Republican officials in five states he lost to ignore the certified vote counts in their states and substitute their partisan preferences for the voters’ decision. Now Congress will formally receive the electoral votes, after a series of attempts to subvert the democratic process, all made possible by the Electoral College.An early salvo was a suit filed in the U.S. Supreme Court by the State of Texas and supported by 126 Republican House members and 18 Republican attorneys general asking the court to throw out the electors chosen by those same five states because Texas said it did not like the way they conducted their elections.Representative Louie Gohmert of Texas filed suit asking the courts to declare that Vice President Mike Pence has the legal right to pick the next president himself under the 12th Amendment — by ignoring the electoral votes for Mr. Biden cast by those five states. Instead, the Gohmert suit asks Mr. Pence to replace them with “votes” cast by the losing Trump elector slates in those states.In response to public pleas from President Trump, Republican Senator Josh Hawley of Missouri has announced that he will join Republican members of the House in objecting to the votes of some states cast for Mr. Biden, thereby requiring separate votes by the House and Senate on those electors. This, in theory, could result in a deadlock that could be broken by the House voting — with one vote for each state delegation — for president, resulting in the election of Donald Trump to a second term after losing in both the popular vote and the Electoral College. The fact that Democrats hold a majority in the House makes this outcome unlikely, of course, but it is a viable gambit for future elections.When the Electoral College was created, many conceived the United States as a confederation of “sovereign states.” And only a small percentage of the adult population could vote at all — property-owning white males in many states — and senators and the president were not elected by popular vote. Today the country is one of the longest-lasting democracies in the world, with almost all adult citizens entitled to vote for the president and members of Congress — our Constitution and body politic are not what they were in 1787.The presidential election is really 51 elections, each conducted and certified by its jurisdiction. Those who support the continued use of the Electoral College system say that the states “speak” to one another through it and so it performs a vital role in promoting national unity and the constitutional system.But the multiple challenges to the votes of the people this year — expressed through the states and their votes in the Electoral College — teach us that the Electoral College is a fragile institution, with the potential for inflicting great damage on the country when norms are broken. Many of the attempts to subvert the presidential election outcome this year are made possible by the arcane structure and working of the Electoral College process and illustrate the potential for the current Electoral College to promote instability rather than the stability the framers sought.When some state legislatures were pressed by President Trump to consider changing the outcome of the election, they all declined — this time. But what would have happened if a majority of legislators in one or more states had decided to overrule the voters and “reassert” their constitutional authority to choose electors? The Electoral Count Act of 1887 gives the final say to governors — the electors they certify are entitled to the presumption of legitimacy. What would have happened if some of the governors of the states Mr. Trump targeted had given in and certified Trump electors despite the official vote count in their states for Biden? We would have had a constitutional crisis of the highest order, calling into question our national commitment to democratic elections.So as some Republicans have persisted in the view that a legislature or governor could have certified electors other than those chosen by the people and certified by state election officials, they have shown the Electoral College to be potentially dangerous. The possibility that politicians of either party could change an election’s outcome through postelection manipulation of the Electoral College is destabilizing.And the idea that the vice president, sitting in the chair as presiding officer of the joint session of Congress to “count the electoral votes,” could decide on his own to ignore electors certified by the states and replace them with impostors certified by no one leads straight to the end of democracy. The push by Senator Hawley and Representative Gohmert and other Republicans to challenge duly certified electoral votes and attempt to have the citizens and states they represent be disenfranchised is another path to the same destination.All of this will, and should, propel calls for modernization of the Electoral College. Many will seek its abolition and replacement by a single nationwide poll. But at the very least, the irrational intricacies of the 1887 Electoral Count Act should be replaced by a uniform system guaranteeing that the popular vote in each state controls the ultimate allocation of that state’s electors. The 2020 election has highlighted the destabilizing tendencies in the current system and the need for reform.Mr. Potter is a former commissioner and chairman of the U.S. Federal Election Commission, was general counsel to John McCain’s two presidential campaigns and is founder and president of the Campaign Legal Center. Mr. Fried was the U.S. Solicitor General under President Ronald Reagan, is a professor at Harvard Law School and serves on the board of the Campaign Legal Center.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Never Forget the Names of These Republicans Attempting a Coup

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyNever Forget the Names of These Republicans Attempting a CoupThis time they’ll fail. But their disloyalty to America is clear.Opinion ColumnistJan. 5, 2021, 7:00 p.m. ETCredit…Erin Schaff/The New York TimesThe New Testament asks us in Mark 8:36: “For what shall it profit a man, if he shall gain the whole world, but lose his soul?”Senators Josh Hawley, Ted Cruz, Ron Johnson and all their fellow G.O.P. coup plotters clearly have forgotten that verse — if they ever knew it — for they are ready to sacrifice their souls, the soul of their party and the soul of America — our tradition of free and fair elections as the means for peacefully transferring power — so that Donald Trump can remain president and one of these sleazebags can eventually replace him.The governing “philosophy” of these unprincipled Trump-cult Republicans is unmistakably clear: “Democracy is fine for us as long as it is a mechanism for us to be in control. If we can’t hold power, then to hell with rules and to hell with the system. Power doesn’t flow from the will of the people — it flows from our will and our leader’s will.”From left, Senators Ron Johnson, Josh Hawley and Ted Cruz. Credit…From left: Manuel Balce Ceneta/AP; Samuel Corum/Getty Images; pool photo by Susan WalshFor America to be healthy again, decent Republicans — in office and in business — need to break away from this unprincipled Trump-cult G.O.P. and start their own principled conservative party. It is urgent.Even if only a small group of principled, center-right lawmakers — and the business leaders who fund them — broke away and formed their own conservative coalition, they would become hugely influential in today’s closely divided Senate. They could be a critical swing faction helping to decide which Biden legislation passes, is moderated or fails.Meanwhile, the Trump-rump G.O.P. cult would become what it needs to become for America to grow together again — a discredited, powerless minority of crackpots waiting around for Trump’s latest tweet to tell them what to do, say and believe.I know that fracturing an established party is not easy (or likely). But the principled Republicans, those who have courageously and dutifully defended Joe Biden’s electoral victory, have to ask themselves: “In a few days, when all of this is over, are we going to just go back to business as usual with people who are, in effect, attempting the first legislative coup d’état in American history?”Because when this episode is over, Trump will be doing or saying something else outrageous to undermine Biden and to make collaboration impossible, and the Trump lap dogs, like Cruz, Hawley, Johnson and House Minority Leader Kevin McCarthy, will be demanding the party go along to serve their political interests, putting the principled Republicans in a daily bind. Every week there will be a new loyalty test.There is simply no equivalence now between our two major parties. In the primaries, an overwhelming majority of Democrats, led by moderate African-Americans, chose to go with the center-left Biden, not the far-left defund-the-police-democratic-socialist wing.Across the aisle, Trump’s G.O.P. became such a cult that it decided at its convention that it would offer no party platform. Its platform would be whatever its Dear Leader wanted on any given day. When any party stops thinking — and stops drawing any redlines around a leader as unethical as Trump — he’ll keep taking it deeper and deeper into the abyss, right up to the gates of Hell.Where it’s now arrived.We saw that this weekend with Trump’s Mafia-like effort to squeeze Georgia’s secretary of state to just “find” him 11,780 votes and declare him the state’s winner by one vote over Biden.And we will see it in an even uglier version in Wednesday’s session in Congress. The Trump cultists will try to transform a ceremony designed exclusively to confirm the Electoral College votes submitted by each state — Biden 306 and Trump 232 — into an attempt to get Congress to nullify the electoral votes of swing states that Trump lost.If I were the editor of this newspaper, I’d print all of their pictures on a full page, under the headline: “Never Forget These Faces: These Lawmakers Had a Choice Between Loyalty to Our Constitution and to Trump, and They Chose Trump.”If you have any doubts that these people are engaged in seditious behavior, their more principled Republican colleagues do not. Speaking of Hawley’s plan to challenge the vote count, Lisa Murkowski, the Republican senator from Alaska, said: “I am going to support my oath to the Constitution. That’s the loyalty test here.” Added Senator Ben Sasse of Nebraska, “Adults don’t point a loaded gun at the heart of legitimate self-government.” Said Senator Rob Portman of Ohio, “I cannot support allowing Congress to thwart the will of the voters.”So, the coup-plotter caucus will fail. But ask yourself this: What if Trump’s allies controlled the House, the Senate and the Supreme Court and got their way — actually used some 11th-hour legislative maneuver and nullified Biden’s victory?I know exactly what would have happened. Many of the 81,283,485 Americans who voted for Biden would have taken to the streets — I would have been one of them — and probably stormed the White House, the Capitol and the Supreme Court. Trump would have called out the military; the National Guard, directed by governors, would have split over this, and we would be plunged into civil war.That is the sort of fire these people are playing with. Of course, they know it — which makes the efforts of Hawley, Cruz, Johnson and their ilk even more despicable. They have so little self-respect that they’re ready to lick the shine off of Donald Trump’s boots down to his last second in office, in hopes of inheriting his followers — should he not run again in 2024. And they are counting on a majority of their more principled colleagues voting to certify Biden’s election — to make sure their effort fails.That way, they’ll get the best of all worlds — credit with Trump voters for pursuing his Big Lie — his fraudulent allegation that the elections were a fraud — without plunging us into civil war. But the long-term price will still be profound — diminishing the confidence of many Americans in the integrity of our free and fair elections as the basis for peacefully transferring power.Can you imagine anything more cynical?How do decent Americans fight back, besides urging principled Republicans to form their own party? Make sure we exact a tangible price from every lawmaker who votes with Trump and against the Constitution.Shareholders of every major U.S. corporation should make sure that these companies’ political action committees are barred from making campaign contributions to anyone who participates in Wednesday’s coup attempt.At the same time, “we the people” need fight the Trump cult’s Big Lie with the Big Truth. I hope every news organization, and every citizen, refers to Hawley, Cruz, Johnson and their friends now and forever more as “coup plotters.”Make all those who have propagated this Big Lie about election fraud to justify voting with Trump and against our Constitution carry the title — “coup plotter” — forever. If you see them on the street, in a restaurant on your college campus, politely ask them: “You were one of the coup plotters, weren’t you? Shame on you.”Adopt Trump’s method: Repeat this Big Truth over and over and over until these people can never get rid of it.It won’t be sufficient to fix what ails us — we still need a new conservative party for that — but it sure is necessary to give others pause about trying this again.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      pence-elecotoral-college-votesb

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWill Pence Do the Right Thing?On Jan. 6, the vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional.Neal K. Katyal and Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history, / and a board member of the New-York Historical Society.Dec. 29, 2020Credit…Tom Brenner/The New York TimesPresident Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the November election by throwing out duly certified votes for Joe Biden.Mr. Pence thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.Mr. Trump himself has criticized virtually everyone’s view of the election, from that of the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never attacked Mr. Pence, suggesting he has hopes for the vice president.But as a matter of constitutional text and history, any effort on Jan. 6 is doomed to fail. It would also be profoundly anti-democratic and unconstitutional.Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.To be sure, this structure creates awkwardness, as it forces the vice president to announce the result even when personally unfavorable.After the close election of 1960, Richard Nixon, as vice president, counted the votes for his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic moments of our Republic’s short history, counted the votes and reported them in favor of George W. Bush.Watching Mr. Gore count the votes, shut off all challenges and deliver the presidency to Mr. Bush was a powerful moment in our democracy. By the time he counted the votes, America and the world knew where he stood. And we were all lifted up when Mr. Gore, at the end, asked God to bless the new president and vice president and joined the chamber in applause.Republican leaders — including Senators McConnell, Roy Blunt and John Thune — have recognized the outcome of the election, despite the president’s wrath. Mr. McConnell put it in clear terms: “The Electoral College has spoken. So today, I want to congratulate President-elect Joe Biden.”Notably, Mr. Pence has been silent. He has not even acknowledged the historic win by Kamala Harris, the nation’s first female, first African-American and first Asian-American vice president.He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.We urge Mr. Pence to study our first president. After the Revolutionary War, the artist Benjamin West reported that King George had asked him what General Washington would do now that America was independent. West said that Washington would give up power and go back to farming. King George responded with words to the effect that “if he does that, he will be the greatest man in the world.”Indeed, Washington did so, surrendering command of the army to Congress and returning to Mount Vernon for years until he was elected president. And he again relinquished power eight years later, even though many would have been happy to keep him president for life. Washington in this way fully realized the American Republic, because there is no Republic without the peaceful transfer of power.And it’s now up to Mr. Pence to recognize exactly that. Like all those who have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander — our Republic is on the line.Neal Katyal (@neal_katyal), a former acting solicitor general of the United States and the author of “Impeach: The Case Against Donald Trump,” is a law professor at Georgetown. John Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American History and is a board member of the New-York Historical Society.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Will Pence Do the Right Thing?

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWill Pence Do the Right Thing?On Jan. 6, the vice president will preside as Congress counts the Electoral College’s votes. Let’s hope that he doesn’t do the unthinkable — and unconstitutional.Neal K. Katyal and Mr. Katyal, a law professor at Georgetown, is a former acting solicitor general of the United States. Mr. Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American history and a board member of the New-York Historical Society.Dec. 29, 2020, 5:00 a.m. ETCredit…Tom Brenner/The New York TimesPresident Trump recently tweeted that “the ‘Justice’ Department and FBI have done nothing about the 2020 Presidential Election Voter Fraud,” followed by these more ominous lines: “Never give up. See everyone in D.C. on January 6th.”The unmistakable reference is to the day Congress will count the Electoral College’s votes, with Vice President Mike Pence presiding. Mr. Trump is leaning on the vice president and congressional allies to invalidate the November election by throwing out duly certified votes for Joe Biden.Mr. Pence thus far has not said he would do anything like that, but his language is worrisome. Last week, he said: “We’re going to keep fighting until every legal vote is counted. We’re going to win Georgia, we’re going to save America,” as a crowd screamed, “Stop the steal.”And some Republicans won’t let up. On Monday, Representative Louie Gohmert of Texas and other politicians filed a frivolous lawsuit, which has multiple fatal flaws in both form and substance, in an attempt to force the vice president to appoint pro-Trump electors.Mr. Trump himself has criticized virtually everyone’s view of the election, from that of the Supreme Court to the F.B.I. to Senator Mitch McConnell, but he has never attacked Mr. Pence, suggesting he has hopes for the vice president.But as a matter of constitutional text and history, any effort on Jan. 6 is doomed to fail. It would also be profoundly anti-democratic and unconstitutional.Both Article II of the Constitution and the 12th Amendment say that the votes of the Electoral College are to be opened by the “president of the Senate,” meaning the vice president. The Electoral Count Act, passed in 1887 to avoid chaotic counts like the one that followed the 1876 election, adds important details. It provides a detailed timeline to tabulate electoral votes, culminating with the final count to take place on Jan. 6, and it delineates the powers of the vice president.He is to be the “presiding officer” (meaning he is to preserve order and decorum), open the ballot envelopes, provide those results to a group of tellers, call for any objection by members of Congress, announce the results of any votes on objections, and ultimately announce the result of the vote.Nothing in either the text of the Constitution or the Electoral Count Act gives the vice president any substantive powers. His powers are ministerial, and that circumscribed role makes general sense: The whole point of an election is to let the people decide who will rule them. If an incumbent could simply maneuver to keep himself in office — after all, a maneuver to protect Mr. Trump also protects Mr. Pence — the most foundational precept of our government would be gravely undermined. In America, “we the people,” not “we, the vice president,” control our destiny.The drafters of the Electoral Count Act consciously insisted on this weakened role for the vice president. They guarded against any pretense he might have to throw out a particular state’s votes, saying that the vice president must open “all certificates and papers purporting to be” electoral votes. They further said, in the event of a dispute, both chambers of Congress would have to disagree with a particular state’s slate of electoral votes to reject them. And they made it difficult for Congress to disagree, adding measures such as a “safe harbor” provision and deference to certification by state officials.In this election, certification is clear. There are no ongoing legal challenges in the states of any merit whatsoever. All challenges have lost, spectacularly and often, in the courts. The states and the electors have spoken their will. Neither Vice President Pence nor the loyal followers of President Trump have a valid basis to contest anything.To be sure, this structure creates awkwardness, as it forces the vice president to announce the result even when personally unfavorable.After the close election of 1960, Richard Nixon, as vice president, counted the votes for his opponent, John Kennedy. Al Gore, in perhaps one of the more dramatic moments of our Republic’s short history, counted the votes and reported them in favor of George W. Bush.Watching Mr. Gore count the votes, shut off all challenges and deliver the presidency to Mr. Bush was a powerful moment in our democracy. By the time he counted the votes, America and the world knew where he stood. And we were all lifted up when Mr. Gore, at the end, asked God to bless the new president and vice president and joined the chamber in applause.Republican leaders — including Senators McConnell, Roy Blunt and John Thune — have recognized the outcome of the election, despite the president’s wrath. Mr. McConnell put it in clear terms: “The Electoral College has spoken. So today, I want to congratulate President-elect Joe Biden.”Notably, Mr. Pence has been silent. He has not even acknowledged the historic win by Kamala Harris, the nation’s first female, first African-American and first Asian-American vice president.He now stands on the edge of history as he begins his most consequential act of leadership. The question for Vice President Pence, as well as other members of Congress, is which side of history he wants to come down on. Can he show the integrity demonstrated by every previous presidential administration? The American people accept a graceful loser, but a sore loser never goes down well in the history books.We urge Mr. Pence to study our first president. After the Revolutionary War, the artist Benjamin West reported that King George had asked him what General Washington would do now that America was independent. West said that Washington would give up power and go back to farming. King George responded with words to the effect that “if he does that, he will be the greatest man in the world.”Indeed, Washington did so, surrendering command of the army to Congress and returning to Mount Vernon for years until he was elected president. And he again relinquished power eight years later, even though many would have been happy to keep him president for life. Washington in this way fully realized the American Republic, because there is no Republic without the peaceful transfer of power.And it’s now up to Mr. Pence to recognize exactly that. Like all those that have come before him, he should count the votes as they have been certified and do everything he can to oppose those who would do otherwise. This is no time for anyone to be a bystander — our Republic is on the line.Neal Katyal (@neal_katyal), a former acting solicitor general of the United States and the author of “Impeach: The Case Against Donald Trump,” is a law professor at Georgetown. John Monsky is the creator of the American History Unbound Series of multimedia productions that covers watershed moments in American History and is a board member of the New-York Historical Society.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Will Trump Force Principled Conservatives to Start Their Own Party? I Hope So

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWill Trump Force Principled Conservatives to Start Their Own Party? I Hope SoAmerican politics will be shaped by the influence of the monarch of Mar-a-Lago.Opinion ColumnistDec. 22, 2020Credit…Samuel Corum for The New York TimesAs the Trump presidency heads into the sunset, kicking and screaming, one of the most important questions that will shape American politics at the local, state and national levels is this: Can Donald Trump maintain his iron grip over the Republican Party when he is out of office?This is what we know for sure: He damn well intends to try and is amassing a pile of cash to do so. And here is what I predict: If Trump keeps delegitimizing Joe Biden’s presidency and demanding loyalty for his extreme behavior, the G.O.P. could fully fracture — splitting between principled Republicans and unprincipled Republicans. Trump then might have done America the greatest favor possible: stimulating the birth of a new principled conservative party.Santa, if you’re listening, that’s what I want for Christmas!Wishful thinking? Maybe. But here’s why it’s not entirely fanciful: If Trump refuses to ever acknowledge Biden’s victory and keeps roasting those Republicans who do — and who “collaborate” with the new administration — something is going to crack.There will be increasing pressure on the principled Republicans — people like Mitt Romney, Lisa Murkowski and the judges, election officials and state legislators who put country before party and refused to buckle under Trump’s demands — to break away and start their own conservative party.If that happens, the unprincipled Trump Republicans — like the 126 House members who joined with the Texas attorney general in a shameful Supreme Court case to nullify Biden’s victory — could have a harder time winning office. That would be a good thing in its own right.More important, even if just a few principled conservatives came together and created a kind of third party in Congress, they could be kingmakers. With the Senate so finely balanced, moderates on each side have significant leverage.We just saw that with the relief bill negotiations, which Trump, on cue, is now threatening to undo. It was the bipartisan House Problem Solvers Caucus — coalesced by the centrist movement No Labels — and an informal bipartisan group of senators that produced the deal from the bottom up.Imagine Biden’s center-left Democrats and principled center-right conservatives working together on fixes for infrastructure, immigration, Obamacare or climate — without Trump around to disrupt any progress.Wishful thinking? Maybe. But one thing I learned covering the Middle East is that there is only one reliable thing about extremists — they don’t know when to stop. So, in the end, they almost always go over the cliff, taking a lot of people with them.Donald Trump is a political extremist. He does not stop at red lights. He does not abide by norms, ethics or the truth. As a result, his huge disinformation campaign against Biden’s election, and his attacks on Republican officeholders and right-wing media that won’t parrot his lies and conspiracy theories, is already fracturing the party at the state level in places like Georgia and Arizona.It’s drawing a sharp distinction between principled Republicans who chose to put their constitutional obligations before Trump’s interests and the unprincipled ones who either are too cowardly to speak up or eagerly hopped into the Trump clown car to secure his blessings for their next election.Think of two recent images. The first is of the House minority leader, Kevin McCarthy, on Dec. 15 briskly walking past a CNN reporter who was asking him a simple question: Would he acknowledge that Joe Biden was the president-elect? McCarthy was too cowardly or too unprincipled to answer.If you’re a Republican lawmaker, do you really want to spend the next four years running away from CNN every time you’re asked to opine about the latest demented thing Donald Trump has said or done — because you’re afraid that he’ll launch a primary attack against you with his devoted base if you show integrity?The contrasting image is of Arizona’s Republican governor, Doug Ducey. It’s Dec. 1 and Ducey is literally signing the papers certifying his state’s election results and officially awarding Biden its 11 electors — ignoring Trump’s baseless claims of voter fraud in Arizona.Ducey’s cellphone rings, but it is no ordinary ringtone. It is “Hail to the Chief,” a ringtone Ducey installed in July so that he would never miss a call from Trump. But this time Ducey simply takes the phone out of his pocket, silences it, puts it aside and goes on signing the papers.According to a report in The Hill, “Trump later called into a hearing with state Republicans that was happening during the certification” and “tore into Ducey,” declaring, “Arizona will not forget what Ducey just did.” Trump was right, but not in the way he predicted.On Saturday, CNN described the civil war that has broken out in Arizona: “G.O.P. party leaders and elected officials who’ve gone all-in for Trump, backed by right-wing media, have relentlessly attacked those who can’t bring themselves to go along with the lame-duck president’s refusal to concede. To be sure, similar splits exist across the G.O.P. nationwide. But the infighting in Arizona offers a clear picture of why some Republicans fear that if Trump continues stirring up and directing his followers once he’s out of office, the party may cripple itself at the state and local level.”The story added: “‘Some Republicans have decided to file for divorce from reality, facts be damned,’ said Barrett Marson, a publicist who worked for Arizona Gov. Doug Ducey’s political action committee. … Perhaps most notable in the subsequent salvos was a tweet from the governor’s chief of staff, Daniel Scarpinato, to ‘Freedom Caucus’ chair Rep. Andy Biggs calling him nuts and ending, ‘Enjoy your time as a permanent resident of Crazytown.’”To be sure, calling Ducey a “principled Republican” is a low bar, considering that he had no problem backing Trump all the way until now. Unlike other Trump-friendly Republicans, though, he was ready to draw a constitutional redline he would not cross.But every day that goes by Trump shows us that as his power decreases, he surrounds himself with more and more unprincipled crackpots, who fan his delusions and propose more and more extreme actions, like Michael Flynn’s neofascist suggestion of declaring martial law and rerunning the election in some states Trump lost.Therefore, the stress that Trump creates will surely get only worse after he leaves the White House, when, to stay relevant, he’ll need to say ever more extreme things that keep his base — now fully marinated in his conspiracy theories — energized and ready to attack any principled Republican who deviates from Trump. Also, all those Fox News commentators who prostituted themselves to Trump (and their ratings), helping to make his extreme base even more extreme, can’t stop now. They’ll lose their audience.They’re all extremists who can’t stop, and principled conservatives understand that. Listen to Evan McMullin, the former C.I.A. operations officer and later chief policy director for the House Republican Conference, who resigned in 2016 to run for president as an independent:“Even though Mr. Trump has been defeated, there is still no home for Republicans committed to representative government, truth and the rule of law, nor is one likely to emerge anytime soon,” wrote McMullin in this newspaper. “So what’s next for Republicans who reject their party’s attempts to incinerate the Constitution in the service of one man’s authoritarian power grabs? … The answer is that we must further develop an intellectual and political home, for now, outside of any party. From there, we can continue working with other Americans to defeat Mr. Trump’s heirs, help offer unifying leadership to the country and, if the Republican Party continues on its current path, launch a party to challenge it directly.”Call me mad, but my gut tells me that when Trump is just the monarch of Mar-a-Lago — just spewing venom — some Republicans will say “enough.” Somewhere in there a new party of principled conservatives might just get born.Wishful thinking? Maybe. But what a blessing that would be for America.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      Trump’s Loss, the Republic’s Win

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storylettersTrump’s Loss, the Republic’s WinReaders respond to an Op-Ed essay about the important role of “civic virtue.”Dec. 21, 2020, 3:13 p.m. ET Credit…Annie JenTo the Editor:“What Really Saved the Republic From Trump?,” by Tim Wu (Op-Ed, nytimes.com, Dec. 10), has it exactly right. Federal criminal prosecutors, military officers and state elections officials standing up for democratic norms formed a red, white and blue line separating democracy’s safety from its demise.But it was not just people in government. It also was citizens, joining together to speak and act, rallying behind the people in government who spoke truth to power. What saves the Republic — now and going forward — is a shared commitment to the democracy we love.Dennis AftergutSan FranciscoTo the Editor:Tim Wu says, rightly, that “civic virtue” upheld by civil servants, prosecutors and military personnel is proving more important than the structural safeguards of the Constitution to save us from the autocracy of President Trump.It is absolutely true that personal ethics, professionalism and morality are indispensable to maintaining our constitutional republic. But unwritten norms are effective only so long as we inculcate and cultivate them. The fact that President Trump’s autocratic words and deeds are endorsed explicitly and implicitly by so many of his supporters means that our essential norms are being badly eroded.These Republicans are teaching Americans exactly the wrong civics lesson. And sooner or later, there will be only the principles of the Constitution to fall back on.Alan Charles RaulWashingtonThe writer was an associate counsel to President Ronald Reagan and is a founding member of Checks and Balances, a group of conservative lawyers dedicated to upholding the rule of law.To the Editor:Talk about Christmas cheer! Tim Wu has delivered as stirring and elegant a piece of writing as one could wish for to lift our hearts just when we need it. Amid the horror of a pandemic run amok and the incitement of a flailing, maddened president, Professor Wu’s paean of praise to common decency is a glorious reminder of its potency. Evil, to reference Edmund Burke, has been denied its triumph; men and women have not done nothing.A toast, then, to the thousands of folks who delivered, counted and defended every single vote! Now we know what the deep state really is. It is “civic virtue.”Barney HarrisTorontoTo the Editor:The Republic has not been “saved.” President Trump has done incalculable damage to the nation and will continue to do so.He lost the 2020 election not through any written or unwritten constitutional constraints; he was hobbled by his own egotism, narcissism and incompetence. Even so, he received 74 million votes, and he would have prevailed had he pretended to be a better leader.Joe Biden won simply through Mr. Trump’s failure of autocracy. We might not be so lucky next time.Thomas W. NugentJackson Heights, QueensTo the Editor:Tim Wu credits principled election officials as one of the firewalls that saved democracy. He is right, but will that center hold?If Republican-controlled state governments are able to install more pliant election officials who will do what they are told, we may be in for real trouble in 2024.Harry FrischerNew YorkAdvertisementContinue reading the main story More

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      How to Reform the Presidency After the Wreckage of Trump

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyHow to Reform the Presidency After the Wreckage of TrumpOur post-Watergate laws and practices for the presidency need revamping.Bob Bauer and Mr. Bauer served as White House counsel to President Obama and as senior adviser for the Biden campaign. Mr. Goldsmith served in the George W. Bush administration as an assistant attorney general and as special counsel to the Department of Defense. They are the authors of “After Trump: Reconstructing the Presidency.”Dec. 18, 2020, 5:00 a.m. ETCredit…Damon Winter/The New York TimesNow that Donald Trump’s time in the White House is ending, an urgent task is the reform of the presidency that for four years he sought to shape in his image and to run in his personal and political self-interest. What the those years have shown is that the array of laws and norms that arose after Watergate and Vietnam requires an overhaul.Any program for reform of the presidency must give precedence to our health and economic crises. It must also acknowledge political realities. Some reforms can be carried out by the executive branch, but others require legislation. Those must attract at least modest bipartisan support in the Senate.With these constraints in mind, an agenda for reform of the presidency could realistically reflect the following priorities:Executive Branch ReformsThese reforms should focus on restoring the integrity of the rule of law, especially to check presidential interventions in law enforcement for self-protection or to harm political enemies. The Constitution vests executive law enforcement power in the president, so the executive branch must institute most of these reforms. Internal branch reforms lack legal enforceability but can establish or reinforce guardrails that constrain even norm-breaking presidencies, especially by influencing presidential subordinates.Because President Trump defied them regularly, and sometimes his Justice Department did, too, there’s a lot of skepticism about norms. But actually norms succeeded more in checking him than has been appreciated — for example, in ensuring that Robert Mueller, despite Mr. Trump’s opposition, could complete his inquiry; in protecting federal prosecutors in New York in any investigation of matters related to Mr. Trump; and in preventing the Justice Department from carrying out the president’s desire to prosecute his enemies.Reforms should include sharpening Justice Department regulations against political bias in law enforcement; extending to the attorney general the department norms against interfering in investigations; clarifying the rules for investigations of presidents and presidential campaigns to protect against the political impact of investigative steps or announcements, like actions taken close to an election; and changing the regulations so that a special counsel possesses enhanced independence from the attorney general and can report to Congress and American people the facts of any credible allegations of criminal conduct against a president or senior executive branch official.Congressional ReformsCongress should by statute supplement the executive reforms. Three should have broad public support and should be easier for Republican legislators to vote for once Mr. Trump is out of office.First, Congress should transform into law the anti-corruption norms of presidential behavior that have long been accepted by both parties but were flouted by Mr. Trump. That would include requiring presidents and presidential candidates to make a timely disclosure of their tax returns. It should also bar the president, under threat of criminal penalty, from any role in the oversight of any business; ban presidential blind trusts, which in this context are inconsistent with core concepts of transparency and accountability; and establish procedures for Congress to police the “emoluments” the president would receive from foreign states.Second, Congress should expressly bar presidents from obstructing justice for self-protection, protection of family members and to interfere in elections. It should also make it a crime for a president to offer a pardon in exchange for bribes, including clemency granted for silence or corrupt action in a legal proceeding.Third, Congress must upgrade legal protections against foreign electoral interference, a concern for both the American people and the U.S. intelligence community. Congress should require campaigns to report to the F.B.I. any contacts from foreign states offering campaign support or assistance. And to clarify that foreign governments cannot offer, and presidential campaigns cannot solicit or receive, anything of value to a campaign, like opposition research, it must criminalize any mutual aid agreements between presidential campaigns and foreign governments.One sharp conflict between the executive and legislative branches needs an urgent fix and is ripe for a deal: the regulation of executive branch vacancies. Many presidential administrations — the Trump administration more aggressively than others — have circumvented the Senate confirmation process for top executive branch appointments by making unilateral temporary appointments.These tactics exploited loopholes in federal vacancies law. Compounding this problem is that the number of Senate-confirmed executive branch positions has grown (it is now around 1,200), and the Senate in recent decades has become more aggressive in using holds and filibusters to block or delay confirmation. Congress should significantly reduce the number of executive positions requiring confirmation in exchange for substantially narrowed presidential discretion to make temporary appointments.The strength of a presidency is measured by its capacity for effective executive leadership. Mr. Trump’s record of feckless leadership was closely related to his unrelenting efforts to defy or destroy constraining institutions. The reforms proposed here would enhance the institutional constraints that legitimate the president’s vast powers.They would thus serve the twin aims of ensuring that the “energy in the executive” that Alexander Hamilton defined as “a leading character in the definition of good government” is nonetheless embedded, as the historian Arthur Schlesinger Jr. rightly insisted, in a “system of accountability that checks the abuse of executive power.”Bob Bauer, a senior adviser for the Biden campaign and a professor of practice and distinguished scholar in residence at New York University School of Law, and Jack Goldsmith (@jacklgoldsmith), a law professor at Harvard, a senior fellow at the Hoover Institution and a former assistant attorney general in the George W. Bush administration, are the authors of “After Trump: Reconstructing the Presidency.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More

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      The Electoral College Shouldn't Matter More Than the Majority's Votes

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      AdvertisementContinue reading the main storyOpinionSupported byContinue reading the main storyWhy Getting the Most Votes MattersMajority rule shapes our lives — except when it comes to electing the president.Mr. Wegman is a member of the editorial board.Dec. 13, 2020, 3:10 p.m. ETCredit…Tamir Kalifa for The New York TimesAs the 538 members of the Electoral College gather on Monday to carry out their constitutional duty and officially elect Joe Biden as the nation’s 46th president and Kamala Harris as his vice president, we are confronted again with the jarring reminder that it could easily have gone the other way. We came within a hairbreadth of re-electing a man who finished more than seven million votes behind his opponent — and we nearly repeated the shock of 2016, when Donald Trump took office after coming in a distant second in the balloting.No other election in the country is run like this. But why not? That question has been nagging at me for the past few years, particularly in the weeks since Election Day, as I’ve watched with morbid fascination the ludicrous effort by Mr. Trump and his allies to use the Electoral College to subvert the will of the majority of American voters and overturn an election that he lost.The obvious answer is that, for the most part, we abide by the principle of majority rule. From the time we are old enough to count, we are taught that the bigger number beats the smaller number. It is the essence of fairness. It dictates outcomes in all areas of life, from politics to sports to cattle auctions. It’s decisive even in institutions whose purpose is to serve as a buffer against the majority.“Take the Supreme Court,” said Akhil Amar, a constitutional scholar at Yale Law School. “No one thinks that when it’s 5 to 4, the four win and the five lose. Everyone understands that five beats four. It goes without saying.”But the principle is especially important in elections. Why? Boil it down to three pillars of democratic self-governance: equality, legitimacy and accountability. We ignore them at our peril. And yet they are being ignored right now by millions of Americans, not to mention hundreds of high-ranking elected officials of one of our two major political parties.It occurred to me that in this moment, a defense of the concept of majority rule can no longer go without saying.First, and most fundamental: Majority rule is the only rule that treats all people as political equals. “That’s actually enormously important,” said Richard Primus, a professor at the University of Michigan law school. Any other rule inevitably treats certain votes as worth more than others. Sometimes that’s what we want, as when we require criminal juries to be unanimous in voting to convict. In that case, “there is one error that we prefer to the other error,” Mr. Primus said. “We want to make false convictions very difficult, much more rare than false acquittals.”But in an election for the president, he said, there is no “morally relevant criterion” for departing from majority rule. Voters in one part of the country are no wiser or more worthy than voters in another. And yet the votes of those in certain states always matter more. “What could possibly justify that?” Mr. Primus asked.This is not just an abstract numerical concern. When people’s votes are treated as unequal, it’s a short jump to treating people as unequal. Put another way, it’s not enough to say that we’re all equal before the law; we also must be able to have an equal say in the choice of the representatives who make and enforce the laws.There is a second reason majority rule is critical: It bestows legitimacy on the system. A representative government only works when its citizens see the electoral process as fair. When that legitimacy is absent, when people perceive — often accurately — that their vote doesn’t matter, they will eventually reject the system.“If we’re going to rule ourselves, we’re going to be ruled by majorities,” said Astra Taylor, an author and democracy activist. “There’s a stability in that idea. There’s a sense of the people deciding for themselves and buying in. That stability is incredibly valuable. The alternative is one in which we’re being ruled by something which is outside of us, whether a dictator or a technocracy or an algorithm.”Finally, majority rule ensures electoral accountability. As the economist Amartya Sen put it, democracies don’t have famines. A government that doesn’t have to earn the support of a majority of its citizens, or at least a plurality, is not truly accountable to them, and has no incentive to represent their interests or provide for their needs. This opens the door to neglect, corruption and abuse of power. (Talk to the millions of Californians ignored by President Trump during wildfire season.) “If someone has to run for re-election, they have to put attention into running things well,” Mr. Amar said. “If they don’t, they will lose elections.”The benefits of majority rule aren’t just a preoccupation for liberals like me, still stewing over the elections of 2000 and 2016. On election night 2012, when it appeared briefly that Mitt Romney might win the national popular vote but not the Electoral College, Donald Trump tweeted, “The electoral college is a disaster for a democracy.” A little while later, he tweeted, “More votes equals a loss … revolution!”He deleted that second one, but he needn’t have. He was only expressing a gut feeling everyone can recognize: The person who gets the most votes should win. If you doubt that, consider that the essence of the case Mr. Trump and his backers are making in every state where they are challenging the result is that the president won more votes than Mr. Biden.Mr. Trump made the same argument in 2016, when he lost the popular vote by nearly three million, yet insisted that he had actually won it “if you deduct the millions of people who voted illegally.”That both claims are laughably false is beside the point. Mr. Trump knows that in a democracy, real legitimacy comes from winning more votes than the other guy (or woman).Of course, everyone is a fan of majority rule until they realize they can win without it. In the last 20 years, Republicans have been gifted the White House while losing the popular vote twice, and it came distressingly close to happening for a third time this year. So it’s no surprise that in that period, the commitment of Republicans to majority rule, along with other democratic norms, has plummeted. A report by an international team of political scientists found a steep drop in Republican support for things like free and fair elections, and the respectful treatment of political opponents. The party’s rhetoric “is closer to authoritarian parties” in Eastern Europe, the report found.For modern Republicans, democracy has become a foreign language. “We’re not a democracy,” Senator Mike Lee of Utah tweeted in October, in what has become a disturbingly common refrain among conservatives. “Democracy isn’t the objective; liberty, peace, and prospefity are. We want the human condition to flourish. Rank democracy can thwart that.”Notice how, in Mr. Lee’s telling, “democracy” morphs into “rank democracy.” What does he mean by “rank democracy”? Presumably, what James Madison referred to as direct or “pure” democracy, the form of self-rule in which people vote directly on the laws that govern them. But there is no such thing as “rank democracy” when it comes to elections. The term is nothing more than a modern Republican euphemism for majority rule.Speaking of the founders, Republicans love to invoke them in support of their stiff-arming of democracy. Perhaps they forgot what those founders actually said.“The fundamental maxim of republican government,” Alexander Hamilton wrote in the Federalist No. 22, “requires that the sense of the majority should prevail.”James Madison, who is often cited for his warnings about the threats of popular majorities, changed his tune after spending several decades watching the American system of government he designed play out in practice. “No government of human device and human administration can be perfect,” Madison wrote in 1834. But republican government is “the best of all governments, because the least imperfect,” and “the vital principle of republican government is … the will of the majority.”Thomas Jefferson, in his first Inaugural Address, said the “sacred principle” is that “the will of the majority is in all cases to prevail.” In the same breath he emphasized that political minorities also have rights that require protection. Those protections exist in the design of our government and in the guarantees of the Constitution, as applied by the courts. The point is that minorities can be protected at the same time that majorities elect leaders to represent us in the first place.Joe Biden will be the next president because he won the Electoral College. But he should really have the job because he won the most votes.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.AdvertisementContinue reading the main story More