Just when you thought you’d heard everything about this year’s chaotic race for the presidency, you might want to go back and look at the 12th Amendment. It could, among other things, make Paul Ryan president.
Except in 1800 and 1876, which were initially ties, we’ve never had an election where no candidate received a majority of the Electoral College.
John Quincy Adams did initially fail in 1824, but he cut a deal with Henry Clay of Kentucky and took the White House. The real victor in the popular vote (by about 150,000 to 100,000) was Andrew Jackson. The infuriated Tennessee slaveholder then built a new Democratic Party in large part on slavery, race, and the slaughter of Indians. He took the White House in 1828.
When the Democrats split in 1860, Abraham Lincoln won the Electoral College while carrying less than 40% of the popular vote.
Rutherford B. Hayes, Benjamin Harrison, and George W. Bush all lost the popular vote but won the White House through the Electoral College.
Through various means of corruption, the Republican Hayes actually tied the Democrat Samuel Tilden in 1876. (Yes, there are an even number of votes in the Electoral College, and yes we could have another tie; it almost happened in 2004.) Hayes agreed to end Reconstruction in the South, the Democrats threw him their votes, and after a five-month standoff, Hayes became president in 1877.
Grover Cleveland defeated Benjamin Harrison in the popular vote in 1884, 1888, and 1892. But Harrison won the Electoral College in 1888, making Cleveland our only president to serve non-consecutive terms.
In 2000, the Republicans (among other things) stripped more than 90,000 mostly black and Hispanic citizens from the voter rolls, and flipped about 20,000 electronic ballots in Volusia County. The flip was later corrected, but served the purpose of getting all four major media networks to declare Bush the winner. George W. Bush’s official margin of victory was 537 votes, though later recounts showed he actually lost. He lost the official popular vote nationwide by more than five hundred thousand votes. Nonetheless, Florida’s votes in the Electoral College made him president.
In 2004, voter rolls were stripped in Ohio, and the electronic vote count was flipped between 12:20 and 2:00 a.m. election night. A very dubious official count showed Bush the popular vote winner nationwide. But for the first time in US history, an entire Electoral College delegation was challenged in Congress. Speaker of the House Nancy Pelosi and Cleveland Congresswoman Stephanie Tubbs-Jones (since deceased) formally argued that the Ohio delegation was not legitimate. Had they won their challenge, John Kerry would’ve become president.
In the chaotic case of 2016, many things are possible. One of them has to do with the 12th Amendment, ratified June 15, 1804, whose relevant section reads:
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. . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
In plainer English, it means this: if there are three or more candidates for president, and none of them gets a clear majority in the Electoral College, the House of Representatives will make one of the top three Electoral Vote-getters the new president. But the tally is scored with each state delegation getting a single, unified vote.
The vice president is chosen in the Senate among the top two candidates, with each Senator getting an individual vote.
At this point, the state delegations in the House shake out with just 14 controlled by Democrats: Washington, Oregon, California, New Mexico, Minnesota, Illinois, New York, Vermont, Massachusetts, Connecticut, Rhode Island, Maryland, Delaware and Hawaii.
Maine, New Hampshire and New Jersey are evenly split.
The rest are controlled by the Republicans.
SO . . . in the long-shot but legally possible world of 2016, should Hillary Clinton get the Democratic nomination, and Bernie Sanders run as an Independent (or vice-versa), and should no candidate get a clear majority of electoral votes, the practical question might be whether enough of the GOP congressional delegations would throw their votes to Hillary Clinton rather than Donald Trump.
BUT . . . if Donald Trump gets the Republican nomination, and Paul Ryan or some other “establishment Republican” runs as an Independent, and carries enough states to throw the outcome into the House, the smart money might well be on that Independent candidate.
It’s all a long shot. And there are plenty of other scenarios to consider.
But this is the law of the land. And in 2016 . . .
Bob Fitrakis & Harvey Wasserman’s T”he Strip & Flip Selection of 2016: Five Jim Crows & Electronic Election Theft” is now available at www.freepress.org and www.solartopia.org. Bob’s “Fitrakis Files” are at www.freepress.org; Harvey’s “America at the Brink of Rebirth: The Organic Spiral of US History” is coming soon at www.solartopia.org.