A 2016 Compromise: "Voting the Slate"

You thought Minnesota voted for Obama in 2008. Minnesota actually voted for these guys. Read on to see what difference it makes.

For swing state voters, there are no good choices on Election Day. As Ross Douthat argues, it is too dangerous to vote for Trump. As Janet Smith argues, it is too dangerous not to. As Rachel Lu argues, for me to signify support for Trump by voting for him risks injury to my soul (for that matter, the same case applies to Clinton). Yet it seems to me that, under our fundamentally flawed first-past-the-post voting system, failing to use my vote to advance the best available version of the common good risks the same injury. As far as I can tell, they're all right.

We talked about the awfulness of all our choices back in May, so I won't belabor this point except to say that, in the six months since I wrote that post, things have somehow gotten worse. Those of you who don't live in swing states are very, very lucky. (I posted a full list of "safe" and "swing" states on Saturday morning.) Those of us who do live in swing states have been trying to figure out how we are going to vote.

I've been leaning toward supporting my preferred presidential candidate, Mike Maturen of the American Solidarity Party. (Here is his platform. It is imperfect, but better than what you'll get from Trump.) Crucially, a vote for Maturen is not just a symbolic gesture in Minnesota: if Maturen gets 1% of the total (~30,000 votes), the Solidarity Party gains official status in Minnesota, which brings with it public financing. And public financing means that an alternative to the Republican and Democratic Parties -- which is absolutely essential -- will be able to run more candidates for more state offices in 2018. My vote for Maturen could thus do real good in Minnesota.

However, many of you do not live in Minnesota, so the practical argument for Maturen doesn't apply. Many others who do live in Minnesota still wonder whether it is morally justifiable to help a minor party gain public financing in one state if the price is the election of the Greater Evil major-party candidate. (And, because we are a swing state, it very well could mean exactly that.)

I hear you. Heck, I agree with you: if I allow Clinton to win by supporting Maturen instead of the only viable alternative to Clinton, I won't be able to look my daughter in the eye. On the other hand, if I allow Trump to win by voting for Trump, I still won't be able to look my daughter in the eye!  It seems I'd better study her eyes closely, because I won't ever see them again after Tuesday!

After several weeks of thought, I think I've found a compromise. It's not perfect, and I'm not convinced it is the best solution. I may still vote for my Solidarity Party of Minnesota. But it is the closest I've come to a solution that my conscience can accept. Some of you may find the distinctions it makes too fine, too academic, to be taken seriously. All I can say is, this is the best I can do. I offer my compromise here for those of you who might find it helpful.

I call it Voting the Slate.

As we discussed earlier this week, when you vote for a presidential candidate, you aren't really voting for that candidate. You are actually voting for a slate of presidential electors who support that candidate's political party. Each slate of electors is hand-picked by their party, and the party that gets the most votes in each state on Election Day gets their slate appointed as that state's official electors in the Electoral College.  The official electors meet in their state capitols on December 19th to cast their votes for President; the votes are then counted by Congress when it meets in January. It is these votes, not yours or mine, that actually elect the president.

There are 538 electors in the country, and, if any single candidate wins a majority of the electors (270 electoral votes), that candidate becomes president. Otherwise, the House of Representatives must pick the president from among the top three vote-getters in the electoral college. This system was designed by the Founding Fathers to be deliberative and collaborative: the states would elect their wisest and best people to serve as electors, the electors would select the three wisest and best people in the country as candidates for President, and the House would then select the very wisest and best person to be President.

Unfortunately, the system has not worked out as the Founders envisioned. Every four years, we end up waging base populist contests between demagogues, just as the Founders feared most, and the electoral college merely ratifies our choice. The House's role in brokering consensus has been entirely bypassed.

Nevertheless, we still follow the Constitution on this. When we vote for president, we aren't voting for a presidential candidate. We are voting for a slate of electors. (Here are Minnesota's slates. Here are most others.) The name on the ballot ("Donald J. Trump") is only there as a convenience to voters -- and to obscure the true nature of the electoral system our Founders wanted us to have. When you fill in that little checkbox marked "Trump" or "Clinton," you aren't really voting for Trump or Clinton. You are voting for the Republican or Democratic slates of electors.

Looking at the two slates in my state, I can say without reservation that I would much rather be represented by the Republican slate than the Democratic slate. The Republican slate is mostly composed of grassroots, pro-life conservative types with good heads on their shoulders; many of them were Rubio or Cruz supporters who were elected to the slate before Trump became the nominee. I'm personally acquainted with a couple of them (though I doubt Linda Presthus or Chris Fields remembers me), and my interactions with them have shown them to share many of my values. By contrast, the Democratic slate is composed of people who, by and large, are absolutely opposed to me on all the issues that matter most. (Neither slate suffers from the deep-seated corruption and moral turpitude of the actual candidates. Kudos to both sides on that.)  I imagine the same is generally true in other states.

One solution to this election, then, is simple: I could mark "Trump" on my ballot, remind myself that I'm not really voting for Trump, but rather for the slate of Republican electors, and that's it.

By voting the slate, I would not be assenting to Trump.  On the contrary, I would continue to fight Trump in every way that I can. I would continue to support efforts to have the Republican National Committee to strip Trump of the Republican nomination (which they can still do after the election). I would pressure all Republican electors, including my own Minnesota electors, to exercise their true authority as electors and vote for somebody else on December 19th. There is good reason to believe this would happen, particularly in states like Minnesota and Wisconsin where Republican activists harbor a special disdain for Trump. (Although many electors are "pledged" to particular candidates, I consider such pledges legally null and void under the Constitution, as do many legal scholars.) I would continue to cheer for the candidacy of Evan McMullin, should there be a recount or revote in Utah, and I will support him all the way to the White House if I can. If Trump found his way to the White House despite these efforts to block him, I would support his impeachment and removal over his prior fraudulent business practices or the criminal abuses of presidential office he would almost certainly commit in short order.

In other words, marking "Trump" on my ballot does not mean I support him; only that I would rather be represented by Minnesota's Republican electors on December 19th, and that I trust them to vote for the best Republican in the country (i.e. not Trump). If the electors decided on December 19th to choose Trump anyway, it would not be with my support or consent. I would have thus done my bit to stop Clinton without supporting Trump.

Still, somehow, this doesn't seem like quite enough. It's a bit too semantic for me to feel at ease about it. After all, if someone asked me whether I voted for Trump, it would be difficult for me to answer "no" when I literally marked the box with Trump's name printed next to it, regardless of what I had told myself about it. Unfortunately, our ballots are designed to force us to endorse a candidate, rather than his electors. This is true even in states (like Wisconsin) where state law is perfectly explicit about what that vote really means.

So let's take "voting the slate" a step further. Let's correct the ballot.

If I decide to vote the slate, I am going to line out the names of the candidates and make explicit that I am voting for the slate, not the candidate. In that case, this is how my ballot will look:

According to Minnesota state law, this is a valid ballot. I am voting for candidates for the office actually at issue (the presidential electors) and I am using the correct ballot line to do so. My ballot is not defective in any of the ways listed in our defective ballots statute. Above all, my intent is clear, which, in Minnesota -- as in most states -- guarantees that my vote must be counted.  I don't actually have a problem with Pence, but I have to cross out both names to make my intent perfectly clear: I am voting for the slate, not either named candidate.

While it remains possible that some canvassing board official will see this unusual ballot and fail to count it correctly because he or she is confused about state law, it is the responsibility of the canvassing board, not me, to ensure that their error is corrected and my vote for the Republican electors counted.

In other states, you should check your local laws about defective ballots. (I checked Wisconsin's, and, as far as I can find, this is fine in Wisconsin; Wisconsin is also a voter intent state.) In states with mechanical "hole-punch" voting or similar, you may need to bring your own pen, but the same principle applies.

In states with electronic voting, you may have trouble, since you can't edit the ballot. You can always write in "Republican slate of electors" in the write-in slot, and this should generally be counted, but canvassing boards tend to be sloppier, and laws trickier, about write-in votes, and I can't say with even modest confidence whether it would be counted in your state. If your state allows early voting on paper ballots (I know Wisconsin does), you could head down to your local election office on Monday and fill out a paper ballot on the spot.

(N.b.: I believe -- perhaps mistakenly -- that Trump is the lesser of the two evils, so I am trying to use my vote to block the greater evil, Clinton. However, if you believe Trump is the greater evil, voting the slate can work for you, too! Just replace "Republican" with "Democratic" where applicable.)

Voting the slate is, I admit, an unusual way to vote. I've never placed any markings on my ballot other than filling in the little oval. But this is an unusual election, where I find it impossible to vote for any candidate or for none. This option is a middle way, which would allow me to explicitly place the responsibility for choosing the president on the electors -- who are not bound to choose either Trump or Clinton. It is an option I will carry into the voting both on Tuesday, when I make my final decision. (And, no, I truly don't know whether I'll be voting the slate or writing in Mike Maturen's name. I go back and forth almost hourly.) If voting the slate is the only option that satisfies your conscience, feel free to use it.

If you are a swing-state voter, and voting the slate doesn't work for you -- whether because of state laws, because you are not confident that your local canvassing board will recognize your peculiar vote, or because you have some personal objection -- then I recommend writing in Mike Maturen, or not voting for president. I find, at the last, that I cannot in good conscience recommend a direct and intentional vote for Donald Trump, even if Trump were running against the Devil himself.

UPDATE: A good lawyer friend of mine leaves this comment:

Because both sides have "lawyered up" in anticipation of a recount demand - and I fully expect that would be the case in MN if Trump wins - I would advise against altering the ballot as James suggests. He is spot on regarding the fact that we are really just electing "electors" and his statement of statutory law appears correct, so his moral analysis is sound. My concern is he assumes the law regarding spoiled ballots is clear and will be followed. As a lawyer I have no such confidence.(Remember the lawyerly battle of what does "is" mean.) Check the box knowing you are voting only for electors - but please don't alter the ballot. We don't need another Bush v. Gore, even if it goes the right way - which is highly unlikely with our current 8-person Supreme Court.

I agree with her that altering a ballot increases the odds of being discounted by error (or by the malice of opposing lawyers). I stand by my plans, but you should take this into account as you decide what you will do.

Nobody said voting well would be easy, right?  :)