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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