A Crazy Election Season

By Ray Smock

I was interviewed by Dan Newhauser of the National Journal a few days ago about the possibility of the 2016 presidential election being decided by the U. S. House of Representatives in case no candidate gains the majority needed in the Electoral College.  The Constitution calls for such disputed elections to be decided by the House of Representatives. But this only worked twice in our history.

Mr. Newhauser’s intriguing piece nicely captures the ambiguity and the confusion that lies just beneath the surface of every presidential contest. They begin with a cumbersome system of party primaries and caucuses that have different rules determined by each of the two major parties in each state. The primary elections culminate in national party conventions, where the winner of the most delegates in each party primary system is nominated to be that party’s candidate in the general election. The general election follows a different set of rules and laws, but the elections themselves are conducted in thousands of precincts using various kinds of voting machines and ballots. Then comes the final part that confuses the hell out of most Americans, the Electoral College vote, where 270 votes are required to be elected president. The “electors” are people in each state who are usually bound to support the winning candidate in that state, but nobody would go to jail if an elector changed his or her mind and voted for another person. Is it any wonder that this election cycle is fraught with peril and uncertainty?

In a new book Ballot Battles: The History of Disputed Elections in the United States, by Edward S. Foley, the author explains the many cases in American history where we have had serious disputes in the electoral process, the most recent being the 2000 election between George W. Bush and Al Gore.  Professor Foley argues in favor of the creation of a means of neutral arbitration to replace our ineffective system of dealing with disputed elections. But in the highly charged partisan atmosphere that exists in our two party system, how can we pause long enough from the battle to find a way to improve the system?
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Here is Dan Newhauser’s interesting piece in the National Journal, which we are happy to pass along with the permission of the National Journal. All rights to the article below are reserved by the National Journal.

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​What Happens if the House Picks the President
If no candidate gets 270 electoral votes, the House gets to choose a winner. It’s happened before.
Dan Newhauser
April 11, 2016, 8:01 p.m. National Journal.

It’s Jan. 20, 2017, and Hil­lary Clin­ton, for a mo­ment en­vi­sion­ing her­self stand­ing on the Cap­it­ol’s West Front tak­ing the oath of of­fice, in­stead ap­proaches a po­di­um at her Brook­lyn cam­paign headquar­ters to con­cede the pres­id­en­tial elec­tion.

Don­ald Trump, still fum­ing at his ouster from the Re­pub­lic­an tick­et at the GOP con­ven­tion, sits just miles away in his Man­hat­tan pent­house con­fer­ring with law­yers about wheth­er and how he can bring his third-party can­did­acy to power.

Mean­while in Hou­s­ton, Sen. Ted Cruz watches Clin­ton’s speech on tele­vi­sion, scrib­bling notes on a pad of pa­per that will even­tu­ally be­come his in­aug­ur­a­tion speech. Only hours ago, Speak­er Paul Ry­an an­nounced from the House rostrum that, after weeks of vot­ing, Cruz has been named pres­id­ent by a ma­jor­ity of the cham­ber’s state del­eg­a­tions.

Is this scen­ario far-fetched? Of course. But it is not un­pre­ced­en­ted.

The Con­sti­tu­tion grants the House power to name a pres­id­ent if no can­did­ate wins a ma­jor­ity of the coun­try’s elect­or­al votes. The last time this happened was in 1824, when John Quincy Adams emerged from a crowded field to be named pres­id­ent by the House over An­drew Jack­son, Henry Clay, and Wil­li­am H. Craw­ford.

It has also come close to hap­pen­ing since. The elec­tions of 1992 and 1980 could have been thrown in­to chaos had third-party can­did­ates Ross Perot and John An­der­son, re­spect­ively, won a few states while can­did­ates Bill Clin­ton and Ron­ald Re­agan won few­er. In 1968, Richard Nix­on won the pres­id­ency with only 301 elect­or­al votes, but George Wal­lace nearly ac­ted the spoil­er by win­ning five South­ern states.

Some ex­perts and his­tor­i­ans think there is an out­side chance that this is the year his­tory re­peatsit­self.
“Soon­er or later it will even­tu­ally hap­pen. It’s been a long wait since 1824,” Uni­versity of Vir­gin­ia law pro­fess­or J. Gor­don Hylton said. “The most likely thing is that someone—Don­ald Trump, Bernie Sanders, Mike Bloomberg—someone would have to an­nounce a third-party can­did­acy and get on the bal­lots in at least some states and carry at least one state.”

Trump has in­deed flir­ted with the idea of run­ning as an in­de­pend­ent if he is denied the GOP nom­in­a­tion. If he goes in­to the Re­pub­lic­an Na­tion­al Con­ven­tion lead­ing in del­eg­ates, but Cruz or someone else emerges as the party nom­in­ee, Trump could be mo­tiv­ated to act on his threat.

Con­versely, the elec­tion could plunge in­to chaos if Trump wins the nom­in­a­tion, but is faced with a case of un­faith­ful elect­ors, or mem­bers of a state’s Elect­or­al Col­lege who de­cide they can­not in good con­science vote for him.

Former House his­tor­i­an Ray Smock said there is no law to pre­vent elect­ors from de­fect­ing from Trump, even if their state in­struc­ted them to vote for him—al­though be­ing os­tra­cized from their party may be mo­tiv­a­tion enough not to make waves.

“You do have some un­usu­al cir­cum­stances go­ing on, and prob­ably the thing that could up­set the apple cart in the Elect­or­al Col­lege—which is al­ways a pos­sib­il­ity—is if the elect­ors de­cide to not fol­low the in­struc­tions of their party or their state,” he said.

In the first scen­ario, it is not un­think­able that Trump as a third-party can­did­ate could cap­it­al­ize on his massive pop­ular­ity in the South and the Rust Belt and emerge in a gen­er­al elec­tion with a few states un­der his belt, so long as he could get on the bal­lot. In the second scen­ario, Trump as the GOP nom­in­ee could win many states, but a few could de­fect and vote for an­oth­er Re­pub­lic­an, per­haps Cruz. In either case, if Trump wins some states, but neither an­oth­er Re­pub­lic­an nor Demo­crat­ic nom­in­ee win 270 elect­or­al votes, the elec­tion would go to the newly elec­ted House.

Al­though it seems un­think­able to most, it is clear that at least some mem­bers of the House are pon­der­ing the scen­ario. Rep. Mick Mul­vaney, for in­stance, answered a Face­book ques­tion­er ask­ing why he is not a del­eg­ate by writ­ing that he wants to stay un­af­fili­ated in case the House is asked to de­cide.

“I have already de­cided NOT to try to be a del­eg­ate. I want to stay sort of neut­ral just in case the elec­tion goes to the House of Rep­res­ent­at­ives,” Mul­vaney wrote. “I just want to be able—in the RARE event that the elec­tion goes to the House—to be able to be an hon­est broker.”

Un­like a nor­mal roll call, the House vote would be a tally of the cham­ber’s state del­eg­a­tions, with each state rep­res­ent­ing one vote. That means Cali­for­nia’s 53 rep­res­ent­at­ives col­lect­ively have the same weight as Montana’s single con­gress­man. Right now, Re­pub­lic­ans hold a ma­jor­ity in 33 state del­eg­a­tions to the Demo­crats’ mere 14, with three tied. Since Re­pub­lic­ans are al­most uni­ver­sally favored to re­tain con­trol of the cham­ber, the res­ult of a House vote would most likely be a Re­pub­lic­an pres­id­ent, even if the Demo­crat­ic nom­in­ee won more elect­or­al votes.

That happened in 1824, ex­plained Ox­ford Uni­versity fel­low Don­ald Ratcliffe, au­thor of a new book on that elec­tion titled The One-Party Pres­id­en­tial Con­test. Jack­son won a plur­al­ity, but not a ma­jor­ity, of the Elect­or­al Col­lege. But after all was said and done, the House named Adams pres­id­ent.

Al­though that elec­tion pred­ated polit­ic­al parties as we know them today, Ratcliffe said the elec­tion was so close be­cause each can­did­ate rep­res­en­ted a clear con­stitu­ency: Adams, the ab­ol­i­tion­ists; Jack­son, the anti-Brit­ish; Clay, the pro­tec­tion­ists; and Craw­ford, much of the polit­ic­al es­tab­lish­ment. He com­pared that to this year’s elec­tion, in which Trump, Cruz, Clin­ton, and Bernie Sanders seem to be ap­peal­ing to very dif­fer­ent seg­ments of the pop­u­la­tion.

“Each of them is ap­peal­ing to a con­stitu­ency, and that con­stitu­ency gets more clearly defined as the elec­tion pro­cess goes on,” he said. “Each of them is rep­res­ent­ing a dif­fer­ent sort of bloc of opin­ion in the coun­try, not al­ways co­her­ent blocs, but defin­able.”

Smock, however, said that for all the dif­fer­ences on the Demo­crat­ic side, the party is much more stable than its coun­ter­parts. Bar­ring an in­dict­ment or some oth­er rev­el­a­tion that would make Clin­ton un­pal­at­able, Sanders will prob­ably en­dorse her if he loses the primary and vice versa. The same can­not be said for Re­pub­lic­ans, who have been fight­ing a close and in­creas­ingly per­son­al and bit­ter con­test.

Still, he gave less than a 10 per­cent chance to the idea that the elec­tion would go to the House.
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“It would be a com­plete mess and I hope that doesn’t hap­pen, but it’s hard to pre­dict now how the con­ven­tions are go­ing to go,” he said. “We like to pre­tend our sys­tem works smoothly, and it usu­ally does, un­til someone throws a mon­key wrench in­to that sys­tem.”
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Copyright National Journal.