A Trojan Electoral College

The Trojan horse is one of the world's greatest myths. The Greeks, thwarted after many years waging war against Troy, built a horse as a gift and pretended to sail away. But soldiers were hidden inside the horse. When Troy brought the horse into the city, the Greek soldiers slipped out in the middle of the night, opened the gates for the Greek army, and defeated the Trojans.

The horse was not a gift. It looked like a gift. But hidden within it was the undoing of the city of the Troy.

Given recent events surrounding Donald Trump, it might be time for some state Republican parties to consider the Electoral College as their Trojan horse.

(If I had time to polish or thought such wonkiness would be the stuff of an editorial, I might publish this otherwise. But consider how this might work.)

Recently, reports have surfaced wondering how the Republican National Committee might replace Mr. Trump if he declined the nomination (details of the RNC process here). But the prospects of Mr. Trump stepping down are, shall we say, slim.

There is also the safety valve of the Electoral College. I've suggested that state legislatures could simply appoint electors instead of holding a popular vote--that idea hasn't exactly caught on.

Still another option would be to have "faithless" Republican electors (i.e., ostensibly pledged to support Mr. Trump but actually vote in late December for some other candidate)--but this assumes a couple of things. First, it assumes the electors would be "faithless." A report on one likely Georgia elector already presages this idea, but it's far from guaranteed that many, if any, would be "faithless." Second, it assumes those electors are selected in that state! If the Georgia popular vote tilts toward Hillary Clinton, then Mrs. Clinton's slate of electors votes, and there is no opportunity for a "faithless" Georgia elector.

But how are these electors chosen, anyway? As the GOP frets that Mr. Trump has already been chosen by its convention, few recognize that almost every Republican presidential elector has not yet been formally selected.

Today, the selection of presidential electors is usually a pro forma process. Party loyalists are named and invariably cast votes (absent extremely unusual circumstances) for the party's nominee.

That selection almost always occurs at the discretion of the state party. Consider a few state laws on the subject. I mean, let's start with Georgia Official Code 21-2-130:

Candidates may qualify for an election by virtue of:

...

(4) In the case of an election for presidential electors, nomination as prescribed by rules of a political party;

That's right. The Georgia Republican Party, by its own rules, picks its presidential electors.

Or, how about Alabama Code 17-19-2:

(b) . . . Such certificates and petitions must be filed in the office of the Secretary of State no later than the 6th day of September next preceding the day fixed for the election.

(c) Each certificate of nomination and nominating petition must be accompanied by a list of the names and addresses of persons, who shall be qualified voters of this state, equal in number to the number of presidential electors to be chosen.

Again, left to the party to name the electors, with an express date of September 6.

How about New Hampshire Revised Statutes 667-21?

Not earlier than the third Tuesday of September following any primary, and not later than the last Tuesday of October, upon the call of the chairman of the state committee of the party, the nominees of each party for the offices of governor, United States senator, United States representative, [etc.] . . . shall meet in state convention for the purpose of . . . nominating presidential electors.

Left to the party (consisting of nominees for offices in New Hampshire), between late September and late October, to gather together and name electors.

One more. North Carolina General Statutes 163-1(c):

Presidential electors shall not be nominated by primary election; instead, they shall be nominated in a State convention of each political party as defined [another section] unless otherwise provided by the plan of organization of the political party;

A default rule of a party state convention, but may be nominated however else the party chooses.

You can peruse a whole list of these options for more information. But the overwhelming discretion resides in state political parties, and the overwhelming discretion occurs in the next several weeks.

So, suppose you're running one of these parties. Your first concern is your state's slate of electors will not be chosen. What do you do?

You appoint a Trojan slate of electors, of course!

You could choose presidential electors who expressly intend to support another ticket. Say, "Flip the Ticket! Pence-Trump!" (Perhaps on the assumption someone like Trump would resign rather than serve as someone's second-in-command?) Or, see if a pair of party statesmen would support "Romney-McCain." Whatever it might be.

Then, parade out the electors on stage and explain, very clearly to voters in your state, "The ballot says 'Trump-Pence.' View those words as something like hieroglyphics.  They stand for something else--they stand for X-Y. When these men and women gather in late December to vote, they're voting for X-Y. So vote for them, using the code name 'Trump-Pence.'"

Is such a decision legal? Of course, with a few caveats.

First, it's important to explain historically that such Trojan electors do exist! Consider Roger Calero, a Nicaraguan who ran for President on the Socialist Workers Party ticket in 2004 and 2008. He's from Nicaragua--clearly ineligible. His name was still printed on the ballot in several states, however--after all, it's the electors' ultimate choice. And in state that didn't permit his name on the ballot? The party printed James Harris, its 2000 candidate, in the slot for President. But the party assured its voters, "Look, we just can't put this name on the ballot, but know that when you're voting for Harris, you're really voting for Calero, because that's who our electors will vote for in late December."

Second, imagine what would happen if, say, a candidate died the week before the election, after all the ballots are printed. The campaign would go around (a la Mel Carnahan 2000) and assure voters, "When you're voting for A-B, you're actually going to be voting for B-C, because our electors will all now vote for B for President instead of Vice President, and new candidate C for Vice President."

Admittedly, these are cases where the candidate is no longer eligible, or is in agreement with the Trojan electors. This would be a rather novel decision for the electors to stage a rebellion--brought on by party leaders.

But aren't electors required to vote for the candidate on the ticket? In most places, no. Most states do have a pledge electors are required to take, but it is wholly unenforceable. A few states have such rules that try to enforce the pledge, but they may well be an unconstitutional (for another time).

Would this help Mr. Trump's opponent Mrs. Clinton win? Not necessarily. A presidential candidate needs an outright majority of electors. So electors switching their votes from Trump-Pence to Pence-Trump would not help Mrs. Clinton. Indeed, if the concern in some states is that Mr.s Clinton's slate of electors might win, this might be seen as a better way of thwarting her ability to secure a majority!

But what if nobody secures 270 electoral votes? Then the race would be thrown to the House, and the top three vote-getters would be candidates to win.

Would state parties need to agree on the new X-Y ticket? To be most effective? Undoubtedly yes. They could scatter their electoral votes to miscellaneous candidates. But if the parties could (quickly!) agree on a new ticket, it would have much more resounding force with the voters in their state, who would not sense that they were alone. Further, it would increase the likelihood that, in the event no one secured 270 electoral votes, a single third candidate would be presented to the House.

Does this make the election "rigged"? Well, this is completely within the rules of the game. In fact, it's in a sense more consistent with the design of the Electoral College--a group of individuals, more dispassionate, exercising independent judgment in their selection of president. (Less "independent," I suppose, if they're all conspiring months in advance on a preferred candidate!)

But it does undermines the quasi-direct election of the president we've come to expect for decades. And it certainly undermines the political primary process that played out over the last year. Whether the American people are able to recognize such a moral distinction is, I think, beyond my ability to know.