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The Immorality of Changing the Rules After an Election

Some bad ideas just won’t die. Most recently, the continuing effort by those who lost the Presidential election to retrospectively change the rules continues to plow on — naturally enough courtesy of the friendly mainstream media megaphone.

Electors should not vote for the candidate who won their state, as the rules call for, but for the candidate who won the national vote, argues Harvard Law professor Lawrence Lessig in the Washington Post. “The framers left the electors free to choose. They should exercise that choice by leaving the election as the people decided it: in Clinton’s favor” Lessig wrote.

Essentially, he argues that there is nothing in the Constitution that overtly requires electors to vote for the candidate who won their state. Therefore they are free to, and ought to, vote for the candidate who won the popular vote. Of course, he does not mention electors are required to follow the rules of the various states in which they are elected.

But aside from an attempt to re-write our long-term understanding of elections, this is a deeply disingenuous article.

First on the general merits, he is promulgating a pure democracy — something the Founders cringed at. Pure democracy is often and aptly compared to two wolves and one sheep deciding on what’s for dinner. The Electoral College as a representative balance between the people’s popular vote and states’ rights was brilliant and on purpose by the Founders and is critical to keep. On the other hand, pure democracy has a long and ignoble history, which is precisely why ours is not that.

In the Federalist Papers #10, James Madison wrote: “…Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security and the rights of property, and have in general been as short in their lives as they have been violent in their deaths.”

But the professor, and many Democrats today, want pure democracy…now.

It’s the cheating of scoundrels

But the most disingenuous element in this line of thought is to change the rules retrospectively.

Donald Trump and Hillary Clinton both ran their campaigns based on the known rules: Who wins the most electors wins the White House. They created their strategies around winning key states. If it was a popular vote, both campaigns would have been run differently and we do not know what those results would have been. Changing the rules after the outcome to change the outcome is just abhorrent thinking.

If the good professor was not too blinkered by ideology, he would know that.

Let’s drive this home with some strong analogies.

Let’s say a football game finished where one team wins 24-10 — a solid win. But the losing team argues afterwards that the game should be decided by total yards gained, because the losing team had 400 yards compared to 250 yards for the other team — a solid advantage. But those were not the rules by which both teams were playing. Strategies would have changed. That sounds absurd, but insert the Electoral College for the game score, and the popular vote for yards gained, and the analogy is sound. But we rightly would never consider that.

Or again, consider if the loser of a seven-game World Series argues afterwards that the champion should be decided by total runs instead of the number of games won, because the loser scored more total runs — which has happened several times. But those weren’t the rules. Again, strategies would have changed.

Or again, consider if you are driving 45 mph in a 45 mph speed limit zone, but the next day the speed limit is changed to 30 mph and you are retroactively ticketed for speeding. That’s absurd! That’s not fair! You would have driven slower! Exactly. It is absurd.

This is the precise principle that applies to those who want to change the elections rules now, for this past election. If you want to change them going forward, that is a discussion to have (and which I would oppose doing) but changing the rules retrospectively is simply wrong.

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EDITORS NOTE: This column originally appeared in The Revolutionary Act.

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