Since Michael Bloomberg raised the possibility that he might run for President as an Independent, I’ve been flooded with questions about how a Presidential election really would work if there were three serious candidates and no one got a majority of the electoral votes. In my novel, Impeachment Day, Sally Macalester is elected as a third party Progressive, but to keep from giving my readers serious mind cramps, or even worse, putting them to sleep, I avoided most of the election law minutiae. Maybe I should not have spared the details.
Former New York Mayor Michael Bloomberg
Anyway, for better or worse, here’s the down and dirty nitty gritty for all you third party political geeks and aficionados. Let’s begin with the selection of the electors. Under Article II, Section 1 of the Constitution each “state shall appoint, in such manner as the Legislature thereof may direct,” its designated number of electors. So in theory electors don’t even have to be elected, and before the Civil War they were actually selected by the legislature in many states.
Today, of course, they’re all selected by election. Their names may not appear on the ballot, but when we vote for a party’s ticket we’re really voting for electors pledged to its candidates for President and Vice-President. As we all know, the election occurs on the first Tuesday after the first Monday in November, but that’s not a Constitutional requirement. Article II, Section 1 gives Congress the power to choose the date, which it has done by statute. 3 U.S. Code § 1.
Congress has also specified that “as soon as practicable” after the election each state must send the electors’ names to the Archivist of the United States. The list must be sent by registered mail “under the seal of the State.” 3 U.S. Code § 6. Generally, it’s a winner take all process, but there’s no rule that electoral votes be awarded on that basis, and in fact Maine and Nebraska allow their electoral votes to be split under some circumstances.
The electors don’t actually vote until the first Wednesday after the second Monday in December of the election year. Article II, Section 1 gives Congress the power to “determine . . . the day on which [the electors] shall give their votes; which day shall be the same throughout the United States.” The related statutory provision is found at 3 U.S. Code § 7. When they meet, the electors must prepare multiple certificates of how they voted, one of which has to be forwarded “by registered mail . . . to the President of the Senate [i.e. the Vice-President] at the seat of government [i.e. Washington].” 3 U.S. Code § 11.
Then, at long last, the electoral votes are counted according to a process laid out in excruciating detail in 3 U.S. Code § 15. Here are the most salient points. On January 6 of the year following the Presidential election, the “Senate and House of Representatives shall meet in [joint session with the Vice-President presiding]. . . . Two tellers . . . appointed on the part of the Senate and two on the part of the House of Representatives [shall open the electoral vote certificates] . . . in the alphabetical order of the States. . . . [The results] shall be delivered to [the Vice-President], who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States.”
And that’s the end of the story unless no one gets a majority of the electoral votes. All of which brings us to the Twelfth Amendment, passed by Congress at the end of 1803 and ratified about six months later in June 1804. Under the original system, each elector voted for two people, without distinguishing who should be President and who should be Vice-President. The idea was that whomever finished second would be Vice-President. In 1796 that resulted in a President from one party (the Federalist John Adams) and a Vice-President from another (the Democratic-Republican Thomas Jefferson). In 1800 it was even worse. Jefferson and Aaron Burr tied for number one and the House of Representatives had to choose using a state-by-state procedure not too different from what would happen today in the event of a deadlock. The current procedure is described below.
Thomas Jefferson, third President of the U.S.
The Twelfth Amendment solved the Jefferson-Burr kind of problem by requiring electors to vote separately for President and Vice-President, but did not change much else. If no Presidential candidate receives a majority of the votes, the House of Representatives chooses one of the top three. As before, each state delegation has one vote, so California counts the same as Delaware or Wyoming. Because Presidential and Vice-Presidential candidates run together on tickets, presumably if there were no majority of the electors for President, the same would be true for Vice-President, but the second spot would then be chosen by the Senate not the House (another change from the original Constitution), and the choice would be between only the top two candidates. So, as in Impeachment Day, it’s entirely possible to end up with a President from one party and a Vice-President from another.
Now for a few “loose-end” questions I’ve been asked regarding some other details. First, would it be the old House of Representatives or the new that would pick the President? To answer this one, we have to look at the Twentieth Amendment, which was ratified in 1933. It establishes that the new Congress convenes on January 3. Because the electoral votes are not formally tallied until January 6, it clearly would be the newly elected representatives who would caucus by state to choose the President, and it would be the new Senate that would choose the Vice-President. But because the Twentieth Amendment sets January 20 as the last day for the outgoing administration, the old Vice-President would preside over the counting of the electoral votes, and more importantly over the Senate if they had to vote on his or her successor. Conceivably, if the new Senate tied, the choice of who would be the new Vice-President might come down to the vote of the old Vice-President.
Another loose-end question is what happens if the House can’t choose a new President by January 20? Again, the Twelfth Amendment provides an answer. If “the House of Representatives shall not choose a President [by January 20], then the Vice-President shall act as President.” Because the Senate would not have to caucus state by state, and because it would be choosing between just two people, it most likely would be the new Vice-President who would serve, but there’s at least a theoretical possibility it would be the outgoing Vice-President.
The third and final question is in some ways the biggest elephant (or donkey) in the room. Do the electors have to vote for the candidate to whom they’re pledged? In other words, could a deadlock maybe be avoided if some electors were “faithless.” Twenty-nine states have passed laws forbidding an elector from voting contrary to his or her pledge, but none has ever been enforced. In any event, there have been only 157 instances of an elector turning faithless, and not one of those has made any difference in the outcome of an election. It’s apparently an anomaly worthy of a footnote at most.
So where would all this leave us if Michael Bloomberg ran and caused an electoral deadlock? There would be no “Bloomberg Party,” nor any Representatives or Senators with whom he’d be directly affiliated. Thus it would seem highly unlikely that either he or his running mate would emerge victorious from the House or Senate selection process. Given the current makeup of the two chambers, I expect the result would be a win for the Republicans.
But if you’ve made it this far, do bear with me for one final thought. Suppose (just suppose) that Donald Trump is the Republican nominee, and that he would win the state by state election in the House after a deadlock. Also suppose that the Democrats recapture the Senate and elect their candidate as Vice-President. Pretty much the reverse of what happens in Impeachment Day. And then suppose (it’s not all that impossible) that the Donald does some of the amazingly unconstitutional things he’s proposed. He gets impeached, and voila, we have a Democratic President.
It could happen. If you don’t believe me, take a quick trip back in time to 2014, or even early 2015. Could you in your wildest dreams have imagined Trump and Bernie Sanders as the leaders coming out of New Hampshire? Impeachment Day is the strange stuff of fiction. But as the saying goes, truth is sometimes the strangest thing of all.