Don’t kill the candidate

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.

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!

Even if the House still is controlled by the GOP after this November’s elections (which is the likeliest scenario), you must remember that when there is a contingent presidential election (one in which the House has to choose from among the three top finishers in electoral votes), the House votes by state delegation (with California, Texas, Vermont and Wyoming each getting one vote), and it takes 26 state delegations to elect a president. So if the GOP holds on to the House but only has a majority in, say, 25 state delegations (with the Dems controlling 23 and 2 being evenly split between the two parties, then the GOP Representatives would not be able to elect the Republican as president. You also have to consider the fact that there likely would be a third candidate apart from the R and D nominees (unless the R and D candidates tied at 269, or else neither one got to 270 because of abstentions). In other words, it’s more complicated than just which party controls the House.

And this law would apply if one of the presidential candidates among whom the House would be deciding dies after the Electoral College has met. Even if the GOP controls 26+ state delegations in the House, if the GOP nominee is dead then the GOP House either would (i) elect the dead man (in which case the VP would become president on January 20, and if no VP candidate got 270 EVs then the Senate—perhaps controlled by the Democrats—would elect the VP-cum-President) or (ii) be forced to elect the Democrat or the third-party candidate that received EVs because one of the houses of Congress (*cough* the Senate *cough cough*) refused to count EVs cast for the dead Republican pursuant to the 1872 precedent involving the death of Horace Greeley. By adopting the proposed law, it would permit the GOP House to elect a Republican president if the GOP presidential nominee is dead (either the dead man’s runningmate, or else a replacement candidate selected by the dead Republican’s presidential electors in a revote); without the law, it would not be able to elect a Republican.

A careful reading of Amendments Twelve and Twenty suggests that Obozo COULD have been chosen as acting POTUS in the event of a deadlock but Amendment Twenty-two saves us from that specific nightmare. That's the good news.

Bad news: If the House (one state one vote) in a deadlock, cannot choose a POTUS and the Senate (one vote per senator) cannot choose a VPOTUS (who, if chosen, would be acting POTUS), then it appears that the House, after March 4, 2017, can then choose a POTUS by one Congresscritter one vote. The Congress doing the voting would be the Congress elected in the 2016 election and any replacements due to deaths or resignations, very possibly a Demonrat Congress if the GOP fails to get its act together and keep its respective factions from insulting one another and forcing them to act like grownups before such divisions cause outright electoral disaster.

In that event, Congress, with a Demonratic majority, after March 4, could choose Comrade Grandpa, Comrade Grandma, Elizabeth Warren, or Moochelle or Noam Chomsky as POTUS and there would be nothing we could do about it. Note that the March 4 date (which was Inauguration Day until changed during FDR's time was never changed for Amendment Twenty purposes.

A Demonrat POTUS names a replacement for Scalia making the SCOTUS immediately no better than 5-4 leftist (with Roberts and Kennedy often joining the libs, Kennedy deciding to retire because of advancing age, Clarence Thomas not being physically immortal, etc. Re-education camps established soon thereafter. That Demonrat can also name young replacements for Ginsberg and Breyer, recharging those seats and leaving SCOTUS, and by extension under stare decisis, the entire federal judiciary in revolutionary hands for as long as any of us may live, even the young uns.

Then we conservatives will live every moment of our lives as we are ordered to live or be punished accordingly or run the amazingly dire risks and steep odds of armed revolution or sullen resistance.

Can we get our act together now, stop the circular firing squad, the #never whomever nonsense, the autoinsults, etc.? The alternative is likely All Hail Big Sister!

That’s for damn sure.

If I were guessing what percentage of Americans that know that....gosh, 2%, that’s my guess.

I think the chances of us dipping below 26 house delegations is fairly remote, and if it happens I have to believe it’s because Hillary won by a wide margin, taking the House on coattails (and the Senate, which can fall far more easily than the House) and thus not needing the House to elect her or the Senate her running mate.

I have trouble seeing a third party candidate getting E votes, none have since George Wallace. Who could? Gary Johnson? Maybe I could see him getting 6 or 7% like John Anderson if enough RINOs rally behind him, but taking a state, I don’t know.

Is there even still time for another major third party candidate to get on the ballot? Sources seem to differ. If not then Johnson (highly likely to be renominated by the LP) is pretty much it.

A tie is unlikely, perhaps the most realistic scenario is GOP gains FL/VA/OH/NH (270) and loses the Omaha NE, Congressional district (269).

Remote. But yeah it’s within the realm of possibility that it’s 269/269 and the rats take a 51-49 (or 50-50 with Biden) Senate majority and the GOP nominee is assassinated by BLM terrorists after the EC votes (if it’s before they vote, I believe they can legally vote for another Republican though plenty will complain and it would go to court with the Supremes tied 4-4) and the dem Senate causes trouble and wants to make Hillary’s running mate the President. Unlikely, but more likely than any of us hitting the lotto jackbot, probably.

Or something like that could happen another year. A major party POTUS nominee dying after the election, it could easily happen a 2nd time. As life expectancy increases you may see more and more older candidates.

So this is worthwhile (potential) legislation. I doubt Congress will act on it this year. But I wish they would, it should be non-controversial, and if dems make it controversial or Obama vetos it, we could trash them for it.

That is a permissible reading of Amendment 20, Section 3, which empowers Congress, under circumstances where no candidate has "qualified" for both POTUS and VPOTUS by January 20 of the year following the election, to enact legislation as to how a POTUS may be chosen and who it shall be. There is no language in that amendment to preserve the one state, one vote provision of House selection of POTUS and, indeed, by legislation, the Senate becomes involved in that selection as well. AND there is no officeholder with a veto power over such a legislative act of Congress.

Additionally, the Twentieth Amendment is subsequent to the original constitution and to Amendment 12 and, any discrepancies among them are resolved by resort to the most recent enactment (Amendment 20) since those who enacted it were presumed to know the constitutional provisions they were amending.

A newly elected Congress takes office on January 3 after election at noon by Amendment 20, Section 1.

Now, imagine that the vicious (on all sides) GOP uncivil war continues and, as one example, Trump is close to 1237 delegates but not quite, say 1190. The RNC makes changes in convention rules before the convention goes into session which rules may be changed by convention delegates but ONLY after the matter of Credentials has been resolved.

The Credentials Committee reports to the convention its rendition (generally uncontroversial to this point) of who the delegates and alternates are and moves adoption of the Credentials Report. A delegate on that list from, say from North Dakota moves to unseat four large Trump delegations in one motion, say New York, Illinois, Florida and California. At that point, the delegates and alternates listed in the Credentials Report from those four states cannot vote on their own credentials (in ordinary circumstances they are viewed as having a conflict of interest).

Nonetheless, a Trump delegate from any unchallenged state delegation moves "to divide the question" essentially to vote on the challenged delegations one by one so that the others can vote unless previously eliminated. Paul Ryan-o, chairing the convention, takes a voice vote, refuses to hear objections or points of order and quickly slams down the gavel ruling that the question will NOT be divided. The remaining delegates vote to unseat the four delegations. Trump now cannot win on the first ballot and probably but not certainly no one else can be nominated on that ballot either.

On a second and any subsequent ballot, many remaining delegates are no longer bound by law (not that such laws are enforceable for any but the delegation from Ohio. Delegates often change even on the first ballot and no one is EVER prosecuted criminally.

If a Connecticut delegate defects on the first ballot from Trump to whomever, that defection takes place in Ohio at the convention and Connecticut has no criminal jurisdiction over violations occurring in Ohio and Ohio has probably no jurisdiction to apply Connecticut criminal law (if any). Defectors from wherever are home free since the same situation would prevail for any state's delegates or alternates OTHER than Ohio.

Trump is likely but not definitely defeated. The better organized GOP-E rams through a ticket of ITS choosing, claiming that someone MUST put a stop to this embarrassing anarchy. El Jebbe? Moral Monster Mitt Romney Redux? John McCain? Melvin Schlabotnick? No matter. The victory is to the better organized who have an actual plan which we are not privileged to see in advance.

Ahhhh, but this is high risk pinball. A number of experienced and eloquent seated delegates from various states force themselves into control of floor microphones to raise hell over the high-handed GOP-E tactics. Say that Ryan-o lacks the cojones to cut off their microphones, which he can arrange (for Trump that wold be a best case scenario. IF and ONLY IF they can stampede delegates who did not get chosen to support Trump but were either uncommitted or, preferably, committed to Cruz and/or Kasich and/or Rubio and in sufficient numbers to overcome the slightly inexperienced Ryan-o and cause him to panic, Trump might be nominated by outraged supporters of others defecting to Trump.

In that event, GOP-E, if sufficiently determined to stop Trump at all costs, puts El Jebbie (in all likelihood) on the ballots of as many states as possible to so divide the Republican inclined voters as to defeat Trump even if that means Comrade Grandma as POTUS.

OR the GOP-E prevails on the nomination by these tactics (not caring about the general election outcome) and Trump goes third party with the same result of Comrade Grandma as POTUS.

Meanwhile the mutual hatred and bitterness in GOP ranks over this three-ring circus and all those very uncharitable remarks by every Republican candidate's most extreme partisans then cause the loss of the Senate and maybe even the loss of the House. I can see Ryan-o paying the price of being defeated by primary or general election in Janesville, just north of where I live in Illinois. No matter, he will be raking in $3 million a year guaranteed for life for his treasonous behavior.

Think Virginia 7 was mad at Eric Cantor? You ain't seen nothing yet but the GOP-E will also take the trouble to take out some of our best non-GOP-E Republican Congress Members because the GOP-E despises above all else non-GOP-E members of the GOP. The GOP-E will make deals with Comrade Grandma to REALLY throw monkey wrenches in our works in exchange for the usual lobbyist favors they passionately crave.

AND, in case anyone entertains the delusion that Comrade Grandma won't be caught dead serving the business interests, check out those who provide oceans of cash to the Clinton Family Crime Foundation, check her Senate voting record, check even Obozo's abandonment of everyone BUT communists, Islamofascists AND the rich and powerful and corrupt.

I could be wrong about some of this and I welcome correction from anyone more knowledgeable in law or parliamentary procedure.

There's more but that should suffice for now. I am pinging a few others to share the above.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.