GateHouse Media
October 30, 2020
In October 1980, Professor Laurence H. Tribe and Thomas M. Rollins wrote an article for The Atlantic entitled “Deadlock: What Happens if Nobody Wins.”
The article ruminated about the possibility of a
third party candidate, John Anderson, winning enough states in the Electoral
College, to throw the 1980 presidential race, principally between President
Jimmy Carter and challenger California Governor Ronald Reagan, into a tie.
Tribe and Rollins lamented, “Americans have awakened
to the prospect of an election that fails to elect with a sense of fear - a
feeling that a House election is proof that we, our politics, even our
Constitution, have somehow failed.”
The authors suggested that choosing the president in
Congress, as the U.S Constitution provides, would be a disaster, just as many
feared “that it was a disaster in 1974 to unmake the president by invoking the
impeachment power for the first time in more than a century, after teaching
generations of schoolchildren to regard impeachment as a dread instrument and a
dead letter.”
Oh how things have changed in 40 years. In 1974, the
House of Representatives only threatened President Richard Nixon with
impeachment. Since then Presidents Bill Clinton and Donald Trump have both been
impeached. Not only that, since 1980, two presidents - George W. Bush and Trump
- have been elected without winning the popular vote.
Here is how presidential elections work in the
United States. On, or before, Nov. 3, each state’s voters will turn out to vote
for a presidential ticket, president and vice president. What their votes
actually do is determine which candidate wins the state, and earns the state’s
electors to the Electoral College.
Although the U.S. Supreme Court recently said
electors can be bound to the candidate that won their state, there have been
instances where electors have strayed. In 1976, a Ford elector in the state of
Washington voted for Ronald Reagan.
If no one gets a majority in the Electoral College,
the election goes to the U.S. House of Representatives to decide.
The Constitution is clear on what happens in the
event the Electoral College does not provide a clear winner. Article 2, Section
1, Clause 3 of the Constitution provides that the House of Representatives
selects the president and the Senate selects the vice president. Voting in the
House is different from the Senate. In the vote for vice president, each
Senator has one vote. In the House each state has only one vote for president.
The first candidate to earn the vote of 26 states wins.
If the presidential race should end up in the House
the outcome would depend on which party controls the state’s congressional
delegation. As it stands, Republicans are in the majority, there are 26 states
with more elected Republican Congressmen than Democrats. Democrats control 23
state delegations and one state, Pennsylvania, has a tied delegation.
That could change with the 2020 congressional
elections. The Congress is sworn in before the Electoral College votes are
counted in the Senate. In the event of an Electoral College failure it will be
the next Congress, not the current Congress, which votes on the presidency, and
a handful of 2020 congressional elections could decide the presidential
election.
Today, the United State of America, and its
Constitution, face an even greater threat. President Trump has refused to
commit to a peaceful transfer of power if he loses the election.
During a recent Washington Post podcast “He Can Do
That,” Lawrence Douglas, a law professor at Amherst College, said, “I would say
that our system doesn’t really secure the peaceful transition of power.”
Douglas went on to say, ”(I)t assumes that the
actors are behaving in good faith and that they have bought into the norms of
constitutional democracy and that they are committed to making sure that the
incoming president has a successful term of office.”
Hopefully, the country does not have to rely on “actors” behaving in good faith.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George
P.C. His book “The Executioner’s Toll, 2010″ was released by McFarland
Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.
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