Posted on 03/30/2016 4:00:36 PM PDT by Paleo Conservative
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. – U.S. Constitution, Amendment XII
There has been an increasing amount of discussion about a possible strong third-party or independent showing in 2016, whether from an independent Republican ticket put up in opposition to Trump, or from a Libertarian or independent campaign capitalizing on popular disgust with the frontrunners for the major-party nominations: Hillary Clinton and Donald Trump, both of whom are unlikely to muster approval ratings higher than the low-mid 40s.
This seems like a good opportunity to review one of the lesser-known provisions of that already too-obscure institution: the Electoral College. Under the 12th Amendment, in order to be elected President a candidate must secure an absolute majority (currently 270 votes) in the Electoral College. Thanks to a strange technicality in the way the amendment is written, as little as one Electoral Vote cast for a third-party candidate, could legally result in the House of Representatives electing that candidate President of the United States.
The way it works, is if no candidate receives a 270 vote majority. Then, the newly elected House will have to choose a President, in the brief window in January between when they take office (Jan 3) and Inauguration Day (Jan 20). In this election, they are limited to choosing from among the top three candidates in the Electoral College. Adding an additional wrinkle to the process: each state gets one vote, the only time the House of Representatives votes that way. The delegations from the 43 states having more than one Representative, must vote among themselves, to decide how to cast each state’s one vote. This effectively guarantees that the Republicans would control the outcome of any election thrown to the House, even if they are no longer the majority, because of their dominance in more, smaller states.
The Vice President is elected separately by the Senate (voting as usual), however they are limited to the top two, not three, candidates in the Electoral College.
So, with that basic scheme in mind (see here for CGP Grey’s excellent video explanation): consider the following scenario plays out on Election Night 2016:
The Democratic nominee is Hillary Clinton. The Republican nominee is Donald Trump. The third candidate can be any number of possibilities: Jim Webb, Mike Bloomberg, Mark Cuban, Angus King, or an independent Republican ticket put up in opposition to Trump, such as Mitt Romney or Paul Ryan or Jeb Bush or Marco Rubio. However, since it’s my personal preference, in this scenario we’ll posit that it is Gary Johnson, former Governor of New Mexico, as the Libertarian nominee. The same basic premise can be played out with any of them.
Clinton has 43% of the popular vote. Trump has 39% of the popular vote. Johnson, after being included in the debates on the calculation from both major-party candidates that he would hurt the other more, gets 16% of the popular vote. The remaining 2% scatters to other minor party candidates. (This is roughly similar to the popular vote breakdown from Clinton vs. Bush vs. Perot in 1992.)
However, the Electoral College tells a different story than 1992. Unlike Ross Perot, Johnson has won a narrow first-place plurality with approx. 34% in three smaller states: New Hampshire, Nevada, and New Mexico, totaling 15 Electoral Votes. The remaining states are near evenly divided: the Democrat ticket has 260 Electoral Votes and, despite being four points behind in the popular vote, the Republican ticket has 263 Electoral Votes.
Instantly, all eyes turn to the House of Representatives, and in particular its Republican members.
The House Republicans are now in a real dilemma. Most have refused to support or endorse Donald Trump’s disastrous campaign, which has continued in much the same manner as his primary campaign, and a small number had even openly endorsed Johnson in the final weeks. Most of those who nominally endorsed Trump, only did so halfheartedly and insincerely.
The Clinton campaign demands that the House confirm her, not along party lines, but because she received, by far, the most popular votes. The same percentage, they note, as Bill Clinton had received to be elected in 1992, though still well short of 50%.
The Trump campaign counters that the voters had returned a GOP-majority House (at least by state), and so the specified process in the Constitution implies that the Republican members of the House should elect their own party’s nominee. Additionally, they count that Trump was the first-place candidate in the Electoral College.
House Republicans are in a catch-22. The vast majority consider Trump ideologically and more importantly, temperamentally, unfit to be President. Many of them have said so publicly. Furthermore, almost two-thirds of voters rejected him, and he lost the popular vote by a wide margin. The idea of a Trump presidency, particularly under these circumstances, with every Republican in Congress to blame, is seen as a nightmare scenario among GOP establishment circles.
On the other hand, few Republican Congressmen can go home to their districts and face a primary, having voted to install Hillary Clinton as President. The massacre in the 2018 mid-term primary elections would be historic, and they know it. They are caught between losing their seats in primaries, or losing their majority in the general election, to voter backlash in favor of the spurned Democrats.
In this scenario, Johnson presents a strongly appealing and compelling dark-horse option. A former Republican Governor with experience in office, and a smaller-government free-market platform, he is much more acceptable to many in Washington than dangerous lunatic Donald Trump. But he also has an appeal and acceptability to the left and center that Trump utterly lacks. The same is likely true of Jim Webb, and possibly Michael Bloomberg.
Facing deadlock and no good options in picking either Clinton or Trump, the House Republicans make an offer: the House will elect the third-party candidate President, and the Senate (still in GOP hands), will elect the Republican nominee for Vice-President. (This is made easier, since the third-place candidate for Vice President is not eligible to be elected by the Senate). This could be Ted Cruz, for example, or another relatively acceptable GOP Governor or Senator placed on the ticket in a failed bid to keep the GOP unified behind Trump. (Alternately, if the Democrats have retaken the Senate, they could independently elect their party’s nominee for Vice President.)
So on December 30, 2016, a press conference is called in the Capitol Rotunda. Speaker Paul Ryan and Majority Leader Mitch McConnell, announce that both of their incoming caucuses had just voted in a special closed-door session, to elect a Libertarian President and a Republican Vice-President. A unity ticket among candidates who, between them, received a majority of both the popular vote and the electoral college. After being sworn in on January 3, the new Congress does exactly that.
And that’s how, if the stars align just right, this obscure provision of the Constitution could allow members of Congress to, in effect, veto both Hillary Clinton and Donald Trump and elevate a third-place runner-up to the Oval Office instead.
Far fetched? Absolutely. Impossible? I don’t think so. Unprecedented? Not quite. In 1824, a very similar scenario played out among John Quincy Adams, Andrew Jackson, and Henry Clay. Jackson, seen as unfit despite being the clear popular vote winner, was passed over in favor of popular runner-up Adams, thanks in part to a deal with 4th place candidate and Speaker of the House Henry Clay to appoint him as Secretary of State.
This is not an entirely new idea, either. Throwing an election to the House has long been the goal of third-party Presidential campaigns, most famously those in 1948 and 1968 that swept the Deep South. It is a consideration that should figure heavily into any campaign strategy for a strong third-party presidential campaign.
I duuno, but them big damn caps affect me.
Another interesting wrinkle is that any state that has a tied vote in its delegation has no vote on in a given round of voting. That means states with delegations that have equal partisan makeup will cancel each other out and cause their states to have no vote if all members of both political parties represented in Congress vote along party lines for president. This is most likely to be a problem for medium sized states with even numbers of congressional districts. The congressmen representing the very smallest states with just 1 congressman will have quite a bit of power.
Yep. And if my Uncle had been plumbed a little differently, then he might have been my Auntie.
Don't blame me. I just cut and pasted from the original.
Considering all that happened for over a month after election day 2000, I wouldn't rule out even more bizarre things happening this time. I wasn't yet a member of Free Republic, but I lurked a lot on the post election and recount threads.
If this had happened in 2008, and Obama was not chosen, we would have had riots.
This kind of lunatic posting continues to drag FR down.
There is no implication that parties are considered within the amendment. Parties are not in the constitution at all.
The election of 1824 had this happen. John Quincey Adams (3d place finisher) was selected over Jackson and Clay in the famous “corrupt bargain”.
This is yet another reason to expand the House of Representatives. The number shouldn’t be 435, it should be at least 10 times that number.
To reach the representation at the birth of our republic, there’d have to be 10,000+ members of the House of Representatives. At that size, we’d approach a more true mix of America.
That and a 5 term limit would do nicely.
We have Roger Sherman to thank for that provision of the Constitution.
It's highly unlikely for this to happen if a candidate has a popular majority. There has only been one presidential candidate who actually won a majority of the popular vote who failed to win a majority in the electoral college. That was Tilden who won 51% of the popular vote in 1876, but even then you should consider that was mostly because, racked up huge margins in former confederate states with margins up to 90% while losing most of the rest of the states. The electoral college penalizes a candidate or party that only has a regional appeal or who loses more states.
Every other time a presidential candidate has won the popular vote and lost the electoral college or has lost in the House of representatives, the candidate winning the popular vote only got a plurality. In 1824 there really wasn't a nationwide popular vote for president. There were large states like New York that didn't even have a popular vote for president. In 1888, incumbent president Grover Cleveland got less than a majority. In 2000, both Bush and Gore had less than a majority.
It’s a possible scenario if Trump runs an independent or 3rd party Bid. No three candidates in this election other than Hillary(D), Trump(I), Cruz(R), in this scenario would be a a good bet. In other words you could wager a small amount for big payout.
On the other hand Hillary can get indicted, Cruz could be found in bed with a 14 year old boy of no particular race and Trump could run of with Megyn Kelly. Events so unlikely that you could never receive an adequate payout.
We’ve had riots before and we’ll have riots again. Our first riots were in 1791 when citizens rose up against federal taxes, the Whiskey Rebellion.
Not really likely, because of ballot access laws. Many states like Texas have "sore loser" laws. It is not possible to get on the ballot in many states if a candidate loses a party nomination but was a candidate in the primary. If the Republican race goes to the convention, all the states will have had primaries or caucuses. Whoever does not get the nomination will be barred from being on the ballot in most states.
Not really likely, because of ballot access laws. Many states like Texas have "sore loser" laws. It is not possible to get on the ballot in many states if a candidate loses a party nomination but was a candidate in the primary. If the Republican race goes to the convention, all the states will have had primaries or caucuses. Whoever does not get the nomination will be barred from being on the ballot in most states.
I wouldn’t know if that was true or false. It’s easier to stick with my fantasy.
What do you mean by "steals the nomination"? The Republican Party has rules some of which have been in effect for 160 years about how conventions are conducted. It takes a majority vote of the delegates to win the nomination. If no candidate has a majority of delegates locked up prior to the convention, there could be a contested convention. It's no different than if a candidate does not get a majority in a primary and there is a runoff election to decide who will be the nominee. Coming in first without a majority is meaningless.
If a candidate participated in a state primary and does not get that party's nomination, that candidate is not allowed to run as an indpendent in that state's general election in the fall or as another party's candidate either. That's long standing election law in most states.
It wouldn’t matter if 3rd party candidate was on the ballot in all states. All he needs is to have some electoral votes, which means he has to win at least one state. If Trump ran 3rd party, where would he win?
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