Posted on 04/29/2016 9:47:47 AM PDT by AuH2ORepublican
I would like to conclude my week of blogging with a call to action.
If no candidate wins a majority in the electoral college, the House of Representatives will choose our next president in a “contingent election,” from among the top three candidates. This is a much less remote possibility than usual this year.
As I explained on Monday, there is no way to replace a candidate who dies in a contingent election. This would disenfranchise an entire side of the election, so it provides an unfortunately heightened incentive for assassins.
We don’t award assassins this prize at any other point in the process. Imagine that Bobby Kennedy had won the Democratic nomination before being assassinated in 1968. It would have been insane if his death had eliminated the Democratic Party entirely from the election. Imagine that Ronald Reagan had been killed the day before his inauguration in 1981. It would have been insane if his death meant that Jimmy Carter took the oath instead of George H.W. Bush.
Now imagine that this November, Hillary Clinton, Donald Trump and Gary Johnson keep each other from winning 270 electoral votes. The country waits for the House to choose the winner in January. But then an assassin kills your favorite candidate, knowing that there is an excellent chance that your side will now be completely eliminated from contention.
It makes no sense.
We adopted Section 4 of the 20th Amendment in 1933 for the specific purpose of preventing this sort of disenfranchisement. Section 4 empowers Congress to pass a simple statute to provide for dead candidates in contingent elections to be replaced.
There are multiple reasonable approaches that a Section 4 law could take. As such, it is essential to pass a law in advance of an actual case, while nobody knows yet which solution would benefit which side. We cannot take it on faith that in the midst of a deadlocked election all sides would instantly reach consensus and pass an optimal law on the fly. The stakes would be too high for the living candidates’ parties to blithely concede their advantage.
We amended the Constitution to give Congress this power. We need Congress to use it. But for 83 years and counting, Congress has done nothing.
Enough is enough. Unlike many other deficiencies in our system, this one involves few moving parts and has nobody defending it. It could be fixed in a matter of days. Everyone would benefit and nobody would suffer if Congress would pass a simple Section 4 law like the one I have drafted, and which I discuss in detail in my forthcoming article in the Harvard Journal on Legislation.
Contact your representative and senators. Contact the Committee on House Administration and the Senate Committee on Rules & Administration (which have jurisdiction over elections). Send them a link to this blog post and tell them to introduce and then pass this statute.
More important, tell your friends and colleagues who might be interested. Post a link to this blog post on Facebook and on Twitter (#dontkillthecandidate). Spread the word.
This proposal does not have the backing of any powerful interest groups. The only way that Congress will ever pass a statute like this is if it starts getting calls and emails and tweets from a lot of people.
The remedy is in your hands. Thank you for using your power to protect our system and our nation!
Perot had 19%, but your point is taken. Still, Perot was polling well into the summer, and was leading overall at some points. If he hadn’t flaked out and dropped out of the campaign in the middle, he might have won some states.
But what if the winner dies AFTER the election; but BEFORE the inauguration?
The 20th Amendment makes clear that the VP-elect swears in as president in that case.
Of COURSE not!
Trump identifies with Presbyterianism; and we ALL know what Mormons think about THAT!
CARLY!!
Unless there is another constitutional provision of which I am unaware, this situation of a deadlocked Congress supersedes IN THESE CIRCUMSTANCES succession installing the Speaker as POTUS automatically. Congress (one Member, one vote) may elect the Speaker in these circumstances, unless you know of some other controlling constitutional provision.
Given the current atmosphere of toxic partisanship and toxic factionalism within the parties, Congress (both houses by mere unvetoable legislation) may choose the corporate tool of their choosing and replace the voters choices for four years. Or, a Demonratic House could give us POTUS Pelosi.
God bless!
You are right that the Speaker would become president on January 20 if the House and Senate had not yet picked a president, BUT he would only be acting president. As soon as the House broke its deadlock (one state one vote), their selection would become president, and if the Senate broke its deadlock, their selection would become acting president instead of the Speaker until the House broke its deadlock. As Section 3 of the 20th Amendment puts it, whoever is next in the line of succession (currently the Speaker) “shall act [as President] until a President or Vice President shall have qualified.”
The 12th Amendment provides that, in cases of contingent VP elections, a majority of the whole number of Senators is required for election. That means 51 Senators, not 50 Senators plus one lame-duck VP.
As for the fact that you can’t fathom no one getting 270 EVs in the 2016 elections because Gary Johnson is highly unlikely to carry a state, you obviously have less imagination than I do. : p
BTW, the reason to adopt Section 3 legislation now is not because it is likely that we’ll have a contingent presidential or VP election in which a candidate dies after the Electoral College has met, but because in the unlikely event that such calamity does occur it would be catastrophic if no law is in place to deal with the situation.
I am afraid that we are going to remain in disagreement on this. Also, the Speaker COULD become POTUS but so could anyone else chosen by a simple majority of the House if the Senate is also deadlocked. Such deadlocks have no expiration date. God bless.
” That means 51 Senators, not 50 Senators plus one lame-duck VP.”
Ok, I wasn’t clear on that.
“As for the fact that you can’t fathom no one getting 270 EVs in the 2016 elections because Gary Johnson is highly unlikely to carry a state, you obviously have less imagination than I do. : p”
Well, let’s go ahead and imagine a scenario, fun.
The LP with their ballot access in 48 or 49 states is seems like the likeliest source of a potential split to me. Their nominee will be Johnson or else one of their ideologue kooks nobodies (who wouldn’t be a threat to win major votes.)
Let’s say Trump is the nominee, some Republicans jump ship for the flawed former Republican Johnson.
Let’s say that Monmouth university poll from March that Kelt remembers is on the money, Hillary 42%, Trump 34%, Johnson 11%. Some people give him money and he starts running tv ads and a couple conservatives endorse him and a couple RINO bigwigs endorse him and he improves on that even with a the specter of Hillary plurality win hanging over us all.
11% nationwide or even 20% isn’t likely to get you a state, unless you’re a regional candidate like Wallace or Thurmond (who won 4 states but only 2.4% nationwide). I’d figure Johnson’s vote would be fairly evenly spread.
His best state last time was his home state, he got 3.5%. Any GOP split there means a dem win.
So where could he get the 30-something% needed to carry a state?
Utah comes to mind, they seem to hate Trump, and it’s heavily Republican enough to still not vote democrat even with a major GOP fracture.
Alaska, perhaps, is another state.
But this point dawns on me, if Gary Johnson, who would certainly take significantly more votes from the GOP than the dems, is doing well enough to win E votes, how is Hillary at the very least not winning a plurality in every swing state and walking away with an easy EC majority like her husband before her?
As for Trump running third party himself if he doesn’t get the nomination (I don’t believe for a second that Kasich or Jeb or Ryan can or will get the nomination, if it’s not Trump it’s Cruz) the question is, would he still have time for that at such a late date (let’s say after the Cali primary if he clearly doesn’t have the 1237, or July after the convo itself, that seems away too late)? To get on the ballots in states? I don’t know. There are state deadlines, there are sore loser laws. I heard someone suggest he could “run his wife” ala Lurleen Wallace. I don’t know.
Or if someone like Rick Perry tried right NOW to get on the ballot as the “GOPE” candidate, is there even still time for that right now? I don’t know. People were trying to draft this general whoever so I guess there’s time, but surely it’s running out.
I’m thinking the 269/269 scenario I previously laid out is a deal more likely, it centers on carrying NH and losing Omaha, sounds weird as Omaha is more Republican than NH (and VA and OH for that matter), but in the end that’s just a single Congressional district voting a little off kilter, perhaps thrown off by third party votes, NE-2 did elect a rat in 2014.
And there’s always faithless electors, in a close race it wouldn’t take many to deprive the victor of a majority.
Anyway, yeah, we don’t want a constitutional disaster, they should pass this. But Lord knows these people usually wait till AFTER the disaster to get off their butts.
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