Is it a violation of the UCMJ for an AD SM to call for overturning the results of the election via Faithless Electors?

2016-11-11T12:57:38-05:00

Response by SN Greg Wright made Nov 11 at 2016 12:58 PM

2016-11-11T12:58:52-05:00

I'm genuinely asking. Not stirring s*** up.

Response by SrA Edward Vong made Nov 11 at 2016 1:00 PM

2016-11-11T13:00:09-05:00

This is actually debatable as members who are serving did indeed pledge themselves to the Constitution.

Response by SSG (ret) William Martin made Nov 11 at 2016 1:09 PM

2016-11-11T13:09:32-05:00

Define "call". Do you mean putting one's name on,a petition? I don't think its a violation because that can be done in private. No one is going to know unless there's a video made and it goes viral.

Response by MCPO Roger Collins made Nov 11 at 2016 1:14 PM

2016-11-11T13:14:41-05:00

No, I see no military infraction, just poor judgment. IMO, 1st amendment applies.

Response by SGM Erik Marquez made Nov 11 at 2016 1:20 PM

2016-11-11T13:20:56-05:00

Unless something has changed the politics prohibition is in reference to making public statements or visual things in uniform.

While misguided I don't think signing a digital petition Would be in violation of the UCMJ unless there was more to it.

Response by LTC Private RallyPoint Member made Nov 11 at 2016 1:22 PM

2016-11-11T13:22:46-05:00

You should add Judge Advocate General Jag to your listing here

Response by LTC Stephen F. made Nov 11 at 2016 1:24 PM

2016-11-11T13:24:38-05:00

I am not sure what a Faithless Elector might be SN Greg Wright. While most states constitutions provide for winner takes all electors, there are four states which divide the electors based on the votes of that state so that some electors go to one and one or more go to another candidate.
In order to call for overturning an election, the "plaintiff" would have to demonstrate their standing because the only body which could invalidate an election is the US Supreme Court.
If the active duty service member if privately calling for overturning the election then that would not be a violation of the UCMJ. If this member is publicly advocating a forcible overturn then that could be a violation of the UCMJ.

Response by COL Mikel J. Burroughs made Nov 11 at 2016 1:35 PM

2016-11-11T13:35:06-05:00

SN Greg Wright Here is a great article that covers most of the do's and don'ts for active duty personnel when it comes to politics. There are specific UCMJ Articles quoted here, directives, and policy letters that have been published. Check this out. I owe you a vote up as well - all out for the day already!

http://www.court-martial.com/ucmj-and-politics.html

UCMJ And Politics :: US Military Political Violation Lawyer Philip D. Cave

Free Consultation - Call (800) 401-1583 - Philip D. Cave is dedicated to serving our clients with a range of legal services including Military Political Violation and UCMJ Defense cases. UCMJ And Politics - US Military Political Violation Lawyer

Response by SPC Erich Guenther made Nov 11 at 2016 1:35 PM

2016-11-11T13:35:32-05:00

I remember when I was in the National Guard in Oconomwoc, WI Armory, a local Democratic Alderman who wanted "the military presence" removed from the city would drive past the Armory and then complain via City Council we were all standing around outside smoking cigarettes instead of working. In fact it was a poorly chosen smoke break area because smoking was not allowed inside. However, back then it was taboo to say anything political while in uniform that could influence a vote for that very reason. It might not be against UCMJ and it might not be against the Army Social Media policy but a local Alderman can easily have a very negative impact on a NG unit. It's funny because after I left that unit they first moved the Armory to the very outskirts of the city via building a new one. Then it was gone completely. Ultimately the left wingers got their way regardless of measures taken to apease them.

Response by SSG Trust Palmer made Nov 11 at 2016 1:45 PM

2016-11-11T13:45:43-05:00

Really...

Response by MSgt Private RallyPoint Member made Nov 11 at 2016 2:34 PM

2016-11-11T14:34:47-05:00

In my opinion it would depends on circumstances, how severe it is, ect. It may be contempt (Article 88) or perhaps fall under 134.

Response by SSG Warren Swan made Nov 11 at 2016 2:38 PM

2016-11-11T14:38:04-05:00

I'm going to wait and see what JAG (someone on here is JAG says). Until then I'd heed some wise words I remember as a young troop "You can do whatever your collar can support". My collar cannot support much.

Response by SGT(P) Private RallyPoint Member made Nov 11 at 2016 2:38 PM

2016-11-11T14:38:52-05:00

Considering Clinton has already conceded the election to Trump congratulating him and she disappeared from the media, I doubt she will be getting "Faithless Electors" to vote for her. Not only that but there are now 10 FBI agents in Arkansas investigating the Clinton Foundation for Illegally accepting foreign donations, failure to properly file with the IRS and improper use of donated funds.

Response by CPT Private RallyPoint Member made Nov 11 at 2016 2:47 PM

2016-11-11T14:47:00-05:00

Being stupid is not against the UCMJ, no.

Response by SMSgt Thor Merich made Nov 11 at 2016 3:40 PM

2016-11-11T15:40:20-05:00

Great question. Too bad I don't know that answer. My guess is maybe or probably? It would depend if the SM is asking for some legal remedy or if they are advocating an illegal response. I know that there are a ton of rules in the UCMJ directing military members actions during elections.

Response by Sgt Aaron Kennedy, MS made Nov 11 at 2016 4:19 PM

2016-11-11T16:19:04-05:00

"Faithless Electors" is not a violation of the Constitution. They are generally "unenforceable" Laws within our Representative Democracy.

Though I personally disagree with calling for Faithless Electors, it is a "valid" mechanism within the Constitution. The question arises whether it is "politicking" and specifically "politicking" as a representative of the Government.

Generally speaking, there is a fine line between "calling to overturn" and "sharing an article" as well. I could sit down and give a Hip Pocket Class on the American Presidential Election system using Bush v. Gore and that would be completely inscope if I told someone how Faithless Electors "could have been used" to shift the election. Does the same apply to the Current Election? Especially since we are not Oathbound to the President-Elect (et al). This gets into a will of the People issue.

Though bad form until January, Mr. Trump has no actual "position" within the Government therefore what crime is being committed?

Response by SFC George Smith made Nov 11 at 2016 6:41 PM

2016-11-11T18:41:21-05:00

most interesting...

Response by SSgt Terry P. made Nov 12 at 2016 11:18 AM

2016-11-12T11:18:08-05:00

SN Greg Wright Thanks,Greg,caused me to pick up on some good information.I have no educated opinion on this subject,so i will not comment more.

Response by ENS Private RallyPoint Member made Nov 12 at 2016 1:03 PM

2016-11-12T13:03:48-05:00

No. Trump is not the President yet. He is an elect. Once Trump is the President, we can not speak badly of him. We are sworn to follow his orders as per our oath of enlistment.

Response by SPC Private RallyPoint Member made Nov 13 at 2016 11:26 PM

2016-11-13T23:26:33-05:00

It's not something I've come across in the MCM before. What I know of politics and the military it should be ok, weird but ok. So long as the SM isn't doing it in uniform or making claims about the military. Though to be honest this could do with a bit of research for a full answer and even then my final word would be seek the advise of a JA.

Response by 1stLt Steven P. made Nov 14 at 2016 12:03 AM

2016-11-14T00:03:27-05:00

The election is over but the President-Elect will not be truly elected until the Electoral College meets on December 19th and votes for the President.. There are a lot of unhappy people who want electors to the Electoral College to not adhere to the votes that got them appointed to the Electoral College but rather to the national popular vote. This is hardly the first time this issue has come up. The creation of the Electoral College was a big negotiation issue in the constitutional convention. It was not the first idea as to how the President (and Vice President) were to be elected.
The President and Vice President of the United States are chosen indirectly by a group of persons elected by American voters. These officials are known as electors, and the institution is referred to collectively as the electoral college. Established in 1787 as one of several compromises in the Constitution, the electoral college and an array of subsequent federal and state laws and political party practices together comprise the electoral college system. It has been criticized by some as an undemocratic anachronism, but praised by others as a pillar of political stability and American federalism. Absent a constitutional amendment, or the success of non-governmental initiatives, such as National Popular Vote this system will likely continue to govern U.S. presidential elections for the foreseeable future.
While the electoral college has delivered “the people’s choice” in 55 of 57 elections under our Constitution, it was not the only choice discussed at the constitutional convention. There were at least four methods proposed to elect the President and Vice President, election by Congress, election by state governors, election by state legislatures and direct election by voters. No one could agree on the best method, so a group called the Committee of Eleven on Postponed Matters invented the Electoral College.
Each State was allocated a number of Electors equal to the number of its U.S. Senators (always 2) plus the number of its U.S. Representatives (which may change each decade according to the size of each State's population as determined in the decennial census). This arrangement built upon an earlier compromise in the design of the Congress itself and thus satisfied both large and small States. This gave some greater weight to smaller states and it also kept members of Congress from picking a President unless there wasn’t a clear winner.
The founders of this great nation anticipated the situation we are now in, where the popular vote does not mimic the votes to electors to the Elector College. They set up the appointments to mimic the representation of EACH STATE in the Congress. The appointments happen in the same ratio of Senators each state has (2) plus the number of Congressmen each state has.
It must be remembered that the Electoral College is based on the manner in which Congress, in particular the House of Representatives was elected. At the time of the writing of the constitution the south was still a rural slave environment. The southern states would not approve the constitution if Article 1 section 2 did not add three fifths of all [non free] persons to the whole Number of free Persons . After the civil war this section was changed by Section 2 of the 14th Amendment . This still left the President (and Vice President) to be elected by the Electors based on the states representation in Congress.
In the contentious political atmosphere of contemporary presidential elections, another misfire, a tie vote in the electoral college, the failure of any candidate to receive a majority of electoral votes, or an extremely close election—in either popular or electoral votes—could arguably lead to an acrimonious and protracted political struggle, or even a constitutional crisis. As James Madison wrote, “a people who mean to be their own governors, must arm themselves with the power which knowledge gives. ” This report seeks to arm Members of Congress and congressional staff with knowledge of and familiarity with the various components and functions of this complex institution.
In the final analysis, the electoral college method of electing the President and Vice President was perhaps the best deal the delegates felt they could get—seemingly the only one on which a consensus could be formed—and one of many compromises that contributed to the convention’s success. Alexander Hamilton expressed the delegates’ satisfaction with, and perhaps their relief concerning, the solution they had crafted, when he wrote this of the electoral college in The Federalist:
The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents.... I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. It united in an eminent degree all the advantages the union of which was to be wished for.
The Constitution, as noted previously, gives each state a number of electors equal to the combined total of its Senate membership (2 for each state) and House of Representatives delegation (currently ranging from 1 to 53, depending on population). The Twenty-third Amendment provides an additional 3 electors to the District of Columbia. The total number of electoral votes per state, based on the most recent (2010) census, ranges from 3, for seven states and the District of Columbia, to 55 for California, the most populous state.
These totals are adjusted following each decennial census in a process called reapportionment, which reallocates the number of Members of the House of Representatives to reflect changing rates of population growth or decline among the states.18 Thus, a state may gain or lose electors following reapportionment, as it gains or loses Representatives, but it always retains its two senatorial or at-large electors, and at least one more reflecting its House delegation. the current allocation among the states is in effect for the presidential elections of 2012, 2016, and 2020; electoral votes will next be reallocated following the 2020 census, an alignment that will be in effect for the 2024 and 2028 elections.
The Twelfth Amendment requires electors to meet “in their respective states.” As noted previously, this provision was intended by the founders to deter “intrigue” and manipulation of the election, by having the state electoral college delegations meet simultaneously, but in separate locations. Federal law sets the first Monday after the second Wednesday in December as the date on which the electors meet. In 2016, the electors will convene on December 19 .
The same law set the “safe harbor” provision to govern disputed popular election returns in any state. When presidential election returns are disputed in any state, if that state, prior to election day, has established procedures to resolve such disputes, and if it has used these procedures to reach a decision as to the election result not less than six days before the date on which the electors are scheduled to meet, then that decision is final.
They vote “by ballot”—paper ballot39—separately for President and Vice President. At least one of the candidates must be from another state, a provision retained from the original constitutional requirement; as noted previously, this was intended by the founders to promote the selection of nationally renowned candidates, and to prevent the electors from selecting exclusively “native sons.” The results are then endorsed, and copies are sent to the following officials:
• the Vice President of the United States (in the Vice President’s capacity of President of the Senate);
• the state secretary of state or the comparable state officer;
• the Archivist of the United States; and
• the judge of the federal district court of the district in which the electors met.
The electors then adjourn, and the electoral college ceases to exist until the next presidential election.
The final step in the presidential election process is the counting, ascertainment, and declaration of the electoral votes in Congress. Federal law directs the House of Representatives and the Senate to meet in joint session in the House chamber on January 6 of the year following the presidential election. For the 2016 presidential election, this day falls on Friday, January 6, 2017. Congress may, however, provide by law for a different date, a practice it traditionally follows when January 6 falls on a Sunday. This occurred most recently in 2013.
No debate is allowed in the joint session. The Vice President, who presides as President of the Senate, opens the electoral vote certificates from each state, in alphabetical order. The Vice President then passes the certificates to four tellers (vote counters), two appointed by the House, and two by the Senate, who announce the results. The votes are then counted, and the results are announced by the Vice President. The candidates who receive a majority of electoral votes, currently 270 of 538, are declared the winners by the Vice President, an action that constitutes “a sufficient declaration of the persons, if any, elected President and Vice President of the States.”
Arguments Against the Electoral College
Those who object to the Electoral College system and favor a direct popular election of the president generally do so on four grounds:
■ the possibility of electing a minority president
■ the risk of so-called "faithless" Electors,
■ the possible role of the Electoral College in depressing voter turnout, and
■ its failure to accurately reflect the national popular will.
Opponents of the Electoral College are disturbed by the possibility of electing a minority president (one without the absolute majority of popular votes). Nor is this concern entirely unfounded since there are three ways in which that could happen.
One way in which a minority president could be elected is if the country were so deeply divided politically that three or more presidential candidates split the electoral votes among them such that no one obtained the necessary majority.
A second way in which a minority president could take office is if, as in 1888, one candidate's popular support were heavily concentrated in a few States while the other candidate maintained a slim popular lead in enough States to win the needed majority of the Electoral College
A third way of electing a minority president is if a third party or candidate, however small, drew enough votes from the top two that no one received over 50% of the national popular total. Far from being unusual, this sort of thing has, in fact, happened 15 times including (in this century) Wilson in both 1912 and 1916, Truman in 1948, Kennedy in 1960, Nixon in 1968, Clinton in both 1992 and 1996. George Bush in 2000. The only remarkable thing about those outcomes is that few people noticed and even fewer cared. Nor would a direct election have changed those outcomes without a run-off requiring over 50% of the popular vote (an idea which not even proponents of a direct election seem to advocate).
In response to these arguments, proponents of the Electoral College point out that it was never intended to reflect the national popular will. As for the first issue, that the Electoral College over-represents rural populations, proponents respond that the United States Senate -- with two seats per State regardless of its population -- over-represents rural populations far more dramatically. But since there have been no serious proposals to abolish the United States Senate on these grounds, why should such an argument be used to abolish the lesser case of the Electoral College? Because the presidency represents the whole country? But so, as an institution, does the United States Senate.
As for the second issue of the Electoral College's role in reinforcing a two-party system, proponents, as we shall see, find this to be a positive virtue.
Arguments for the Electoral College
Proponents of the Electoral College system normally defend it on the philosophical grounds that it:
■ contributes to the cohesiveness of the country by requiring a distribution of popular support to be elected president
■ enhances the status of minority interests,
■ contributes to the political stability of the nation by encouraging a twoparty system, and
■ maintains a federal system of government and representation.
Recognizing the strong regional interests and loyalties which have played so great a role in American history, proponents argue that the Electoral College system contributes to the cohesiveness of the country by requiring a distribution of popular support to be elected president. Without such a mechanism, they point out, presidents would be selected either through the domination of one populous region over the others or through the domination of large metropolitan areas over the rural ones. Indeed, it is principally because of the Electoral College that presidential nominees are inclined to select vice presidential running mates from a region other than their own. For as things stand now, no one region contains the absolute majority (270) of electoral votes required to elect a president. Thus, there is an incentive for presidential candidates to pull together coalitions of States and regions rather than to exacerbate regional differences. Such a unifying mechanism seems especially prudent in view of the severe regional problems that have typically plagued geographically large nations such as China, India, the Soviet Union, and even, in its time, the Roman Empire.
The Electoral College actually enhances the status of minority groups. This is so because the votes of even small minorities in a State may make the difference between winning all of that State's electoral votes or none of that State's electoral votes. And since ethnic minority groups in the United States happen to concentrate in those States with the most electoral votes, they assume an importance to presidential candidates well out of proportion to their number. The same principle applies to other special interest groups such as labor unions, farmers, environmentalists, and so forth.
It is because of this "leverage effect" that the presidency, as an institution, tends to be more sensitive to ethnic minority and other special interest groups than does the Congress as an institution. Changing to a direct election of the president would therefore actually damage minority interests since their votes would be overwhelmed by a national popular majority.
The result of a direct popular election for president would likely be a frayed and unstable political system characterized by a multitude of political parties and by more radical changes in policies from one administration to the next. The Electoral College system, in contrast, encourages political parties to coalesce divergent interests into two sets of coherent alternatives. Such an organization of social conflict and political debate contributes to the political stability of the nation.
The Electoral College has performed its function for over 200 years (and in over 50 presidential elections) by ensuring that the President of the United States has both sufficient popular support to govern and that his popular support is sufficiently distributed throughout the country to enable him to govern effectively. Although there were a few anomalies in its early history, none have occurred in the past century. Proposals to abolish the Electoral College, though frequently put forward, have failed largely because the alternatives to it appear more problematic than is the College itself. The fact that the Electoral College was originally designed to solve one set of problems but today serves to solve an entirely different set of problems is a tribute to the genius of the Founding Fathers and to the durability of the American federal system.

Response by CPO Dave Homan made Nov 14 at 2016 11:03 AM

2016-11-14T11:03:02-05:00

Doubt it. He just needs his ass whooped.

Response by CPO Private RallyPoint Member made Nov 15 at 2016 8:20 AM

2016-11-15T08:20:36-05:00

It's kind of a moot point on the SMs part. If all he/she did is sign an online petition or vent displeasure with the election results, then no real violation. If the SM is talking about a violent overturn, remind them of their oath of enlistment and advise them to cease immediately. This election was conducted IAW the constitution and all applicable laws. Whether someone agrees with the results or not is irrelevant. Those are the facts.

Response by MAJ Private RallyPoint Member made Nov 15 at 2016 8:55 AM

2016-11-15T08:55:35-05:00

Seeing as how that would be in opposition to the Constitution and several state laws, that would be a violation of the SM's oath, even if was too much of a non-starter idea for anyone to bother with trying to make a UCMJ case.

Response by CPO Private RallyPoint Member made Nov 15 at 2016 10:48 AM

2016-11-15T10:48:26-05:00

Seaman, you are charged to protect and defend the constitution, and follow the orders of the Commander in Chief. If in your case you signed a petition I don't think you have violated anything in the UCMJ. After the inauguration, you must salute and follow your oath.

Let me give you some Chiefly advise young man, your life in the Navy will be so much better under a republican president that under a democratic president. your infrastructure will be better, you will get actual raises in pay. with larger infrastructure (more ships) rates will open up, advancement will more open and some of the recent PC changes will be overturned by the new SECDEF and SECNAV. There was nothing wrong with the traditions in the Navy during my career and the careers of sailors that have succeeded my in the leadership of the Navy.

For legal guidance review Col Burroughs' post

Response by LCDR Thomas Doherty (USNR-R Ret) made Nov 16 at 2016 2:54 AM

2016-11-16T02:54:04-05:00

No, active duty servicemembers have First Amendment rights, as we see here by the many members commenting on controversial topics. There is also no Article of the UCMJ which would apply.

Response by SPC Joseph Ahner made Mar 22 at 2017 8:37 AM

2017-03-22T08:37:35-04:00

Faithless electors are completely legal and the electoral college is not simply a rubber stamp on the popular vote. I fail to see any sort of improper conduct present.

Response by SSgt Boyd Herrst made Jan 1 at 2018 6:57 AM

2018-01-01T06:57:27-05:00

I think they (you) need to keep out of it and let the right people handle it. Just step back
And let them do what has to be done. I suppose if you have a good friend who doesn’t jibber-jabber and could contribute your donation(cash) and give you Sure anonymity.. that’d be the limit of your involvement... don’t hurt involved with those that get involved with nasty shenanigans.. because most likely when the shtf.. and inquiries of where the $$ came from to do all the dirty deeds.. names start popping up.. and you don’t need your Civilian bud getting sweaty palms when his time to get grilled arrives.., especially if he’s honest . (Of course if he’s honest he wouldn’t involve
Himself like that... ). I know that even the
Bad guys want to know where the good guys got their $$... so they can try to tie them to inappropriately gained receipts..
Yeah, you gave cash.. the good guy won proving the other guy cheated.. or didn’t win ... but as I mentioned that your bud would be honest if asked where he got the cash you gave.. the bad guy tries to prove you gave inappropriately ... it doesn’t matter the good guy won.. you involved yourself..So the best bet is Stay out of it!
It’s not worth getting dragged through the
Mud over, even for a good guy.. I seen a few recalls when I was in by local pliticians
Got invited to sorees when they won a recount they won.. or recall..! I just backed off and said duty calls.. maybe I joined them for a few awhile after the Fire has turned to ashes.. and everybody has gone about their usual routine..

Response by SSgt Boyd Herrst made Jan 1 at 2018 7:13 AM

2018-01-01T07:13:16-05:00

Thank you Colonel for these little Gems of wisdom from the UCMJ to start off the
New Year...