Win One State and Become President

tckThe 2016 presidential election has been unprecedented already in so many ways, but it may be holding its biggest surprise for last, and by “last,” I mean January 2017.

Political analysts are focused on the Republican nominating contest. Some believe that Donald Trump may amass 1,237 delegates and win the nomination at the Republican National Convention in Cleveland. Others believe that no one will win a majority on the first ballot and in subsequent ballots the “Trump” delegates (who in many cases are not chosen by the Trump campaign) would coalesce in support of a Republican more palatable to the establishment.

Riot-control gear being acquired by Cleveland in preparation for the RNC.

Riot-control gear being acquired by Cleveland in preparation for the RNC.

I think either outcome is fairly likely. In any case there are likely to be a large number of unhappy campers at the Republican National Convention.

A similar situation occurred at the 1948 Democratic National Convention in Philadelphia. The Southern Democrats were so unhappy with the nomination of incumbent President Harry S. Truman that they walked out and held their own convention and nominated Strom Thurmond of South Carolina as the “Dixiecrat” nominee.

Trump has warned of riots if he were denied the nomination and the party imposed an establishment candidate. At the very least, he could mount a third-party challenge. Even if he did not do so after the convention (July 18-21), it would not be too late to get listed on the ballot of all but a dozen states.

Conversely, if the establishment felt Trump was unstoppable, they could abandon the party which they grew up with and support someone like Kasich as an independent candidate.

Why would a Republican run as an independent candidate? Wouldn’t that just divide the conservative vote and hand the White House to Hillary Clinton? In fact, in order to be listed on the ballot, an independent candidate would need about 80,000 signatures from Texas voters by May 9 and about 90,000 signatures from North Carolina voters by June 9. Against two opponents and without any chance of winning those 53 electoral votes, it would seem impossible to amass the 270 electoral votes required to win the electoral college.

True.

But consider what happens if the candidate concentrates on a small number of states. For example, Kasich could try to win his home state of Ohio among other states where he leads Clinton 52% to 37%. Meanwhile, Trump leads Clinton in Colorado 48% to 37%, so he might be able to take this state away from the Democrats.

December 19, 2016

It would then be very likely that neither Trump, nor Kasich, nor Clinton would attain the requisite 270 electoral votes when the Electoral College meets in the various states on December 19.

What happens in that case?

Twelfth Amendment in the National Archives.

Twelfth Amendment in the National Archives.

According to the Twelfth Amendment to the Constitution, the President would be chosen by the House of Representatives while the Senate chose the Vice-President.

… if no person have such majority [in the electoral college], 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….

January 6, 2017

So who would the House of Representatives pick when they meet on January 6, 2017?

Currently there are 246 Republicans and 188 Democrats in the House. Given a choice between Donald Trump, a Democrat and an “establishment” Republican, most Republican congressmen (even the 48 in the “Tea Party Caucus”) would probably choose the traditional Republican.

114th Congress: Percentage of Congressman from each party by state, ranging from dark blue (most Democratic) to dark red (most Republican).

114th Congress: Percentage of Congressman from each party by state, ranging from dark blue (most Democratic) to dark red (most Republican).

This Republican advantage is likely to persist even after the 115th United States Congress is sworn in. We do not know exactly who will be elected in November, but it should be noted that the Republican advantage is heightened using the unusual voting procedure described in the Twelfth Amendment. Each state’s delegation gets one vote.

With a Democratic majority, fourteen states (Hawaii, California, Oregon, Washington, New Mexico, Minnesota, Illinois, Maryland, Delaware, New York, Connecticut, Rhode Island, Vermont and Massachusetts) would likely favor the Democrat. Gerrymandered states like Pennsylvania with 13 Republicans vs. 5 Democrats in its Congressional delegation would support the establishment Republican candidate despite the Democratic advantage in registered voters. Meanwhile, three states (New Jersey, New Hampshire and Maine) have evenly divided delegation so they would be deadlocked. The remaining 33 states have majority Republican delegations and would likely support a Republican candidate which is well beyond the 26 state delegations required for the House of Representatives to elect a president.

With such a three-way field, we might see an establishment Republican like Governor John Kasich sworn in as President of the United States on January 20, 2017 having won a plurality of the vote in only a single state: his home state of Ohio.

The End of the Electoral College

The American people already dislike the idea of the electoral college having seen four elections in which the candidate who won the popular vote failed to be elected president.

  • In 1824, Andrew Jackson lost to John Quincy Adams despite having won the popular vote by 38,000.
  • In 1876, Samuel J. Tilden lost to Rutherford B. Hayes despite having won the popular vote by 250,000.
  • In 1888, Grover Cleveland lost to Benjamin Harrison despite having won the popular vote by 90,000.
  • In 2000, Al Gore lost to George W. Bush despite winning the popular vote by 540,000.

Republicans might relish the idea of getting two shots at the White House. However, the sequence of events I have outlined would represent a true failure of our electoral system, and perhaps would lead to a belated victory for the supporters of the National Popular Vote.

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