Hillary Clinton in 2016.
It's not the years, it's the mileage.
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!
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/25/congress-must-act-now-on-section-4-of-the-20th-amendment/
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/26/that-time-that-congress-was-proactive-in-1926/
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/27/the-law-that-congress-should-pass/
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/28/why-congress-slept/
*ping*
I urge you to contact your Representative and Senators and urge them to adopt legislation to eliminate the uncertainty that would exist if a presidential election was thrown into the House of Representatives (because no one got 270 electoral votes) and one of the three candidates being considered by the House were to die.
In particular, if you’re in Michigan’s 10th congressional district (in Michigan’s Thumb and parts of Macomb County) or if you’re a resident of Missouri, I would urge you to contact Congresswoman Candice Miller or Senator Roy Blunt, respectively, given that they chair the House and Senate committee with jurisdiction on the matter.
An election cannot get thrown to the House unless there are at least three candidates who split the electoral votes. That just isn’t likely to happen.
The last time that a third party candidate got ANY electoral votes was George Wallace in 1968. Perot did not get any electoral votes in 1992 or 1996. Anderson did not get any electoral votes in 1980.
Perot did get enough popular votes to swing the election to Clinton in 1992 and 1996, but not enough to win any electoral votes in any state.
There is a hidden agenda inside that proposal. Like..how to eliminate a donald trump win as a third party candidate perhaps?
Not afraid of it, but it’s worth mentioning that Trump, Sanders and Clinton would all easily be the oldest first-term president ever elected.
Here is a more likely scenario that could take place under existing law.
Let's say Trump and Clinton get the Republican and Democrat nominations, Bernie runs as a third party candidate, and Bernie manages to get just enough electoral votes to prevent Trump or Clinton from getting a majority. Meanwhile, the Democrats retake the Senate.
The House would then pick the next President (voting by state, so each state gets one vote). The House can only pick from the top three candidates who got votes as President. Would the House pick Trump or Clinton? All Clinton needs is enough RINOs to join with the Democrats and give her a majority of the states.
One thing working in our favor is that each state gets one vote, regardless of population or number of congresscritters, and most of the Democrats are concentrated in a few large states. So all of those flyover states with low populations, like Montana and North Dakota, have the same number of votes as New York and California.
The Senate then gets to pick the Vice President, and is limited to picking from the top two VP candidates. So even if the Republican controlled House picks Trump as President, the Democrat controlled Senate could pick Clinton's VP candidate as the Vice President.
Actually, an election would get thrown into the House if no one got 270 electoral votes, which could happen even in the absence of a third candidate receiving EVs if (i) it’s a 269-269 tie or (ii)someone wins 270-268 but one of the presumptive winner’s electors abstains from voting (which is precisely what one of Gore’s electors from DC did in 2000, which is why Bush won 271-266 with 1 abstention).
And besides, while it is correct that no third-party candidate has earned EVs since 1968, there have been several instances of “faithless electors” voting for someone else (a Nixon elector from NC voting for Libertarian John Hospers in 1972, a Ford elector from WA voting for Ronald Reagan in 1976, a Dukakis elector from WV voting for Dukakis’s runningmate Lloyd Bentsen in 1988, and a Kerry elector from MN voting for Kerry runningmate John Edwards in 2004). Plus, just because no third-party candidate has carried a state (or a CD in the states that allocate EVs by CD) in the past 48 years does not mean that it will never happen again.
kennedy, you are correct, a law adopted pursuant to Section 4 of the 20th Amendment would have no bearing on the 12th Amendment’s provision that if no one gets a majority of EVs that the House, voting by delegation, shall elect the president. There is no hidden agenda at play here.
And you also are correct that if the election gets thrown to the House that RINOs could bandy together with Democrats to elect Hillary, although only if the GOP suffers big House losses would the Democrats control 26 delegations even with the help of Hillary-supporting RINOs.
I didn’t say it was impossible for the election to go to the House, just that it is not likely to happen. The last time the election got thrown to the House was in 1825.
Also, the scenario that the article is concerned with is not the unlikely event that the election is decided by the House, but the further unlikely event that one of the top three candidates drops dead before the House decides.
Actually, in one of the posts Professor Kalt notes that Trump and Sanders will be a little older on Election Day than Reagan was on Election Day 1980, while Hillary would be less than a year younger than Reagan was. So, yes, one of them could die between the date on which the Electoral College meets and the day on which Congress would count the electoral votes (and, if no one had a majority, that the House would elect the president and the Senate the VP).
Frankly, while I support the adoption of legislation under Section 4 of the 20th Amendment to deal with the possibility of such an untimely death, I think that an easier, and more important, congressional statute would move the date on which the Electoral College meets in each state from its current (federally imposed) date in early December to January 2, the day before the new congressional term commences. That way, if a presidential or VP candidate dies between Election Day and January 2, the presidential electors can vote for a replacement prior to the electoral votes being delivered to Congress. This would largely eliminate the risk of a dead person being one of the candidates to be considered by the House for the presidency (or by the Senate for the vice presidency). Perhaps even more importantly, such change in meeting date largely would eliminate the possibility that the outright winner of the presidential election is a dead man, which either would result in the VP-elect becoming president on January 20 or, if Congress followed its (stupid) 1872 precedent that electoral votes cast for a dead person (in that case, Horace Greeley) would not be counted, perhaps permitting the House to elect the loser as the new president.
I am concerned that any substitution law that might get enacted would be worse than the status quo.
Let’s say Trump, Clinton and Sanders run. Trump and Clinton each get 49.5% of the electoral votes and Sanders gets 1%. That throws it to the House. Then either Clinton or Sanders drops dead.
Under current law, the House would be limited to picking between the remaining two candidates. If any substitution law is enacted, then a majority of the Republicans and Democrats in the House could come up with a “consensus” uniparty candidate and give the Presidency to him.
You are correct, it would take two unlikely things to happen for the proposed law to become necessary. But if they *did* happen, it would be in everyone’s best interest for the law already to be in place; otherwise, we would have Congress scrambling to deal with the situation in an extremely tense environment in which half the country would be saying that Congress was trying to steal the election.
Sanders a LITTLE older? Sanders will be 75. That’s six and a half YEARS older. That’s about half his life expectancy!!!
Here is the 20th Amendment issue that keeps me up at night.
Under the 20th Amendment, the new Congress takes office on January 3 but the new President does not take office until January 20. That means that if the Democrats retake the Senate (which is looking more and more likely), then regardless of who the next President is, Senate Majority Leader Chuckie Schumer will have almost three weeks to push through confirmation of all of Obama’s pending nominations, from the Supreme Court to the district courts and all of the federal agencies. There will not be a damned thing that the Republican minority can do to stop it.
The only reason that there is still a filibuster permitted for Supreme Court nominations is because when Harry Reid unilaterally eliminated the filibuster for all other nominations there were no open Supreme Court seats. If Obama’s nomination for Scalia’s seat is still pending, Schumer will unilaterally eliminate the filibuster for Supreme Court nominations immediately after he takes over.
It is not altogether clear that Congress would follow its (stupid) 1872 precedent that electoral votes cast for a dead person (in that case, Horace Greeley) would not be counted, and thus that the dead person would not be considered by the House.
And if you read the law proposed by Professor Kalt (it is very short, and included at the end of the third linked posting that I listed in this thread’s post #2), Congress would not be able to determine who the substitute candidate would be. If Hillary died, her runningmate would be the candidate that the House would be able to consider, and if her runningmate was dead as well, then the Hillary electors would vote again to replace Hillary with someone else. I guess that, in theory, both Hillary and her runningmate could die and the Democrat electors (all of whom will be liberal Democrat hacks) cunningly could replace Hillary with a RINO that could win 26 state delegations in the House), but by far the likeliest result would be that they would replace Hillary with John Kerry or Elizabeth Warren or some other liberal Democrat.
And if dead people can’t be considered by the House, and Trump is the one that dies, then the House would have to decide between Hillary and Sanders. Wouldn’t you rather have the House be able to vote for Trump’s runningmate, or a replacement that the Trump presidential electors selected?
I have little doubt that Clinton will survive any other candidates. Like Fidel Castro, she will never go away.
Hell, if there is a nuclear war, all that will survive will be the Clintons and the cockroaches, until the Clintons eat the cockroaches.
That’s true, six years and change is more than “a little” older. But Trump would be just a few months older than Reagan was in 1980, and Clinton a few months younger than Reagan was.
“Hell, if there is a nuclear war, all that will survive will be the Clintons and the cockroaches, until the Clintons eat the cockroaches.”
_____________
So they’re cannibals? : )
That does address most of my concerns, though I hate to imagine who Clinton or Sanders will pick as a running mate (it will almost certainly be a young, far left-wing Hispanic, preferably gay).
I do still think that the election going to the House and one of the top three candidates dropping dead is a pretty unlikely (although not impossible) scenario.
Hillary Clinton in 2016.
It's not the years, it's the mileage.
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