The Twelfth Amendment and Modern Elections; Welcome to the Suck.

By Joshua Brownlee

special thanks to Dr. John R. Brownlee (aka Dad) for contributions to this article.

Marines sent into countries consumed by civil war and political instability, often greet shocked new comers with the phrase “welcome to the suck”. We like to think The United States is a stable government with solid political and judicial institutions that protect democratic processes from self-destruction. Elections are a key part of this stability. The United States has a long history of moderate governance. It has an equally long history of controlling populist candidates and parties who undermine the system. Given the current mainstream candidates, it’s easy to see why the populists may need to be reigned in from time to time. It doesn’t matter what a person’s political affiliation, they are scared of “the other guy”. Common sense would tell us who ever scares the fewest people wins. Right? Wrong.

In order to become president of The United States of America, a candidate needs 270 electoral votes. Feel free to visit Electoral College website for more information: electoral college link.  How electoral votes are earned depends on the state awarding them. Regardless of how they are obtained, a candidate has to clear the 270 mark. If you have ever wondered why there aren’t more political parties in the most powerful country in the world now you have 270 reasons. The more parties that exist, the more difficult it is to obtain the magic number. With that in mind, interesting questions start coming up:

  • Can we get to January 2017 without a President Elect?
  • What happens if no one gets 270?
  • Has this happened before?

In a General Election, can the Electoral College fail to pick a President? Unfortunately the answer is yes. Here’s how it could play out this year.  Let’s say hypothetically, Hillary Clinton and Donald Trump become the nominees for the Democrat and Republican parties respectively. Both candidates have very loyal followers, but they also have fanatic opponents within their own parties. That situation becomes the perfect conditions for a 180 year storm. A powerful third candidate can now emerge, someone like Gary Johnson. I’m not supporting any particular candidate in this article but if you don’t know who he is visit: https://en.wikipedia.org/wiki/Gary_Johnson. Mr. Johnson is a libertarian and former Governor who may pull a lot of unhappy voters from their standard voting patterns. Normally a former Republican turned libertarian would hurt Donald Trump. This year there are a lot of other factors in play. For example, disappointed Bernie Sanders’ voters may be very interested in legalized marijuana, increased protection of civil liberties, and a new name that’s not poisonous to half the population. It doesn’t take a rocket scientist to predict Johnson launching a massive internet and grassroots campaign immediately after Clinton and Trump have been dragged through the mud in their primaries. Johnson could conceivably pull 30% maybe 40% of the angry voters who hate their party’s candidates but are scared as hell of “the other guy or gal”. So now we have three legitimate candidates each getting a relatively equal share of the vote. After November 8th, 2016 it is completely plausible that none of the three candidates has enough electoral votes to secure the nomination.

What happens if no one gets 270? Enter the largely unknown Twelfth Amendment of the United States Constitution. The Twelfth Amendment was ratified in 1804 to avoid hostile partisan politics in the Electoral College when selecting candidates for President and Vice President. The Twelfth Amendment States in part:

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.

(emphasis added) U.S. Const. amend XII. So going back to our hypothetical; if Hillary Clinton, Donald Trump, and Gary Johnson fail to get 270 electoral votes the House of Representatives shall immediately choose the President. As stated in the text, each state gets one vote in the House of Representatives. The 114th U.S. House of Representatives currently has 435 Representatives. Republicans hold 246 seats and Democrats hold 188 seats (one seat is vacant). Normal partisan politics would hold the Republican candidate would prevail because Republicans hold a sizable majority in the House and would therefore be able to win majorities in each state’s vote. Also, because each state only gets one vote the normal political powerhouses like New York, California, and Florida now have as much influence as Vermont or Delaware. Add to the mix mainstream Republican politicians seem to be more anti-Trump than some Democrats (see: Trevor Noah’s The Daily Show with Lindsey Graham). It becomes perfectly conceivable that core groups of Republicans and Democrats would be inclined to pick a third party candidate. If a majority in could not be reached in the House by January there would be no President Elect. So now the President is whoever the Vice President Elect is. Wait WHAT??? Yes, that’s right! If the House of Representatives can’t decide on a nominee, Section 3 of the Twentieth Amendment states:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified. . .

(emphasis added) U.S. Const. amend XX. Has this ever happened before? Sort of, 180 years ago. A similar procedure exists within the Twelfth Amendment for the U.S. Senate to pick the Vice President if one is not selected. In 1836 the Electoral College failed to elect a Vice Presidential candidate. The Senate ended up electing Richard Mentor Johnson over Francis Granger. Since 1836, the parties have tried to avoid those kinds of electoral show downs. While we’re on Vice Presidents. The Vice Presidential election adds another wrinkle to the situation because it’s conceivable that Hillary Clinton’s running mate could be partnered with Gary Johnson as President because each position is filled by a separate body. Given Congress’s recent failure to act on the simplest tasks of passing a budget or holding a judicial confirmation hearing, all of this starts looking pretty possible. And here dear friends is the constitutional cherry on the cake. With such a high stakes election that heavily depends on the interpretation of Constitutional Amendments which have not been actively used in over a century, it is almost certain that some process or contested result will be brought before the U.S. Supreme Court to give final say on the issue. As painful as it was to watch the political process dragged out in Bush v. Gore, 531 U.S. 98 (2000), there was finality when the high court held there was no constitutional remedy for Florida’s Equal Protection Violation in a 5-4 decision. With the recent passing of Justice Scalia, we now have 8 justices on the U.S. Supreme Court. If the Justices fall into traditional conservative and liberal positions, then we could be faced with a 4-4 decision leaving an open wound to fester. The break-down of political parties and constitutional mechanisms would only aggravate the simmering anger and hostility that has been brewing in political factions for the last 40 years. Despite the Founders’ best efforts to provide safety valves for insanity and political incompetence, we will find ourselves in a world of chaos. Welcome to the suck.

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