Could a third party siphon enough electoral votes

Politics & Elections
41

I don’t think there’s a clear answer, but I’d argue that we could conclude the balloting was over.

The point might be that the Senate can only vote on the people who actually ran for Vice President, and can only pick the top two vote-getters (the House when doing a contingent Presidential election picks from the top three finishers), so the new President in this weird scenario may pick a different person who might break the Senate deadlock, assuming it isn’t deadlocked based on purely party reasons.

What’s interesting is despite two amendments designed to clarify issues of Presidential election and succession there are still things left unclear. Article II, Section 1, Clause 6 of the constitution provides that when a Presidential vacancy occurs, the “powers and duties” of the office devolve to the Vice President “until the Disability be removed, or a President shall be elected.” When John Tyler became the first Vice President to succeed to the Presidency, he asserted that he was “now the President”, not the “Vice President acting as President.” Some of his political opponents disagreed–and said there was an argument to be made that Article II actually suggests Congress could call a special election to fill the vacancy (in fact the Presidential succession laws effected in 1792 allowed for a special election for President, but only in cases of both President and Vice President being vacant). But nothing ever came of it. The “Tyler precedent” was then followed when Zachary Taylor, Lincoln, Garfield, McKinley, Harding and Roosevelt died in office. The 25th at least clarified the matter by making it clear in its first section that when the President dies or is removed from office or resigns, the Vice President becomes President. But there’s actually still a potential for an ambiguous situation.

The 12th Amendment says specifically that in a case where the House cannot choose a President, but the Senate does select a Vice President, the Vice President elect becomes “acting President.” The 25th Amendment only specifies that “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” So the 25th doesn’t actually contain any text that would counter the 12th Amendment, and thus the argument could be made that in this scenario the Vice President is only “acting President” and you could go back to Article II and make the argument that Congress has the power to call a special election.

There’s also arguments that the never-invoked 1947 statute on Presidential succession is unconstitutional on at least two grounds:

  1. The constitution provides that Congress can designate which “officer of the United States” shall act as President when both President and Vice President are incapacitated/dead/resigned, and technically members of Congress are not “officers of the United States”, a specific term of art in the Constitution referring to persons who have been selected to high government office by the President and confirmed by the Senate. Since this doesn’t apply to the Congressional leaders, they should not be in the line of succession.

  2. The constitution provides that when a person becomes “acting President” they are to remain “acting President” until another election is held to select a new President. The 1947 statute violates this in several ways. For one, it provides that in a case where President, Vice President, Speaker, and President Pro Tem of the Senate are vacant, the Secretary of State becomes acting President, but it also allows for that person to be “removed” as acting President whenever the Senate or House convenes and fill those vacant offices. That is in direct contradiction to the Article II requirement that a person who has become Acting President retains those powers until another President is elected. Likewise, combined with the provisions of the 25th Amendment, the 1947 statute would allow for an Acting President to nominate to Congress a candidate to fill the Vice Presidential vacancy–if that person was confirmed by both houses, that person would become Vice President–at which point you can argue he’d “bump” the acting President out of office (unconstitutional) and it would also put the new VP in the weird position again of being “acting President”, because the scenario under Section 1 of the 25th which specifies the situations in which the Vice President “becomes the President” aren’t necessarily met here.

[Interesting West Wing TV series sidenote–during the acting Presidency of Glenn Walken (Played by John Goodman) he says at one point that if his time as President continues for much longer he wants to “take action” on filling the Vice Presidential vacancy. Technically under the 1947 act, doing so would “bump” him, as someone who was acting President due to being Speaker of the House, out of office as acting President. Also in this story arc Walken resigns from the Speakership first, then takes the oath of office of President. Technically this could not be–the Speaker’s ability to be acting President is based on being the Speaker, in the moment he resigned his Speakership he was no longer legally able to be sworn in as acting President.]

42

The State of West Virginia actually had a similar constitutional problem when Robert C. Byrd died. Governor Joe Manchin filled his office temporarily with an appointee, but then a special election was held, in which Joe Manchin was a candidate–and won. Manchin resigned the Governorship. WV’s constitution and succession law was as mixed up as the Federal government’s, the “President of the Senate” in a gubernatorial vacancy was supposed to take up the powers of the Governor. But those powers and the ability to do that was contingent on that person being President of the Senate. Earl Tomblin, the President of the Senate, thus was technically violating principles of separation of powers, but there was no way around it, if he resigned as Senate President he couldn’t act as Governor. The compromise he worked out was to remain President of the Senate, but to also delegate all of his powers and authorities in the Senate to the next ranking member of the State Senate, and he took the position that he would not take any legal actions as a legislator during his time as acting Governor.

The state constitution actually contained conflicting timelines on whether or not Tomblin needed to call a special election, or whether he was allowed to just serve out Manchin’s term. The State Supreme Court eventually ruled an election was necessary–which Tomblin won, but it was only to serve out (by then) the one year left on Manchin’s term. Tomblin then ran for and won reelection to a full 4 year term, but under the terms of the constitution no one can be elected Governor more than twice in a row. So in 2017 Tomblin will leave office as he could not run again in the 2016 election, despite only having served around 5.5 years as Governor instead of the full 8 typical of a two term Governor.

WV did create the legal office of Lieutenant Governor and clarified the succession after this.

43

Interesting posts.

I can only wonder what would happen if we had another close election like in 2000. Or if Trump loses by one or two states and simply refuses to concede and starts taking the cases to the courts. What if he and his voters refuse to accept court decisions?

44

Maybe.

Gary Johnson is polling very high for a Libertarian: high enough that if those are people who have largely voted for either major party, the shift to Johnson would wreck one major party’s chance at the White House.

Since Johnson was once GOP, and since a lot of the GOP strongly object to Trump’s nomination, I figured that Johnson was largely pulling support from the GOP base. I could even see him out-polling Trump in a few states by November. If so, HRC has a good chance of an electoral blowout and may have, in effect, already won.

But then I thought about it more. If the major split in US politics is not economic and fiscal policy, but cultural identity, does that mean that Johnson’s libertarianism pulls from the civil libertarian side of the Democratic coalition more than from the anti-tax element of the GOP? If that’s the case, maybe HRC can’t win, and Trump has practically already won.

What if Johnson is pulling roughly evenly from both parties, though? Hillary hasn’t had quite as much trouble with her party as Trump has with the GOP, but she has had some. Could a state swing to Johnson due to desertions from both major parties?

If Johnson can get independents who think HRC & DJT are too corrupt, disgruntled small government Republicans, and anti-war civil libertarians, I wonder if he could get some states. If so, he might be elected the next President by Congress.

I still think probably not, but it’s a weird year.

45

I don’t really see congress giving it to Gary Johnson, it has to win at least one electoral vote to be a candidate in a House contingent election, which is a tall order.

I’m not really sure where Johnson is pulling support from, I know that at least a few GOP leaders like Romney have said they’re “considering voting Libertarian, despite having some oppositions to their platform.” Marvin Bush (brother of W and Jeb) has endorsed Johnson, and given how political the Bush family is I suspect that endorsement wasn’t made without some agreement by the rest of the Bush clan; I honestly have a suspicion the two Bush ex-Presidents have considered coming out as openly against Trump but have ultimately decided to come down on the side of not being directly involved in partisan politics.

One thing that hurts the Libs with potential GOP defectors is they aren’t pro-life. They aren’t really pro-choice either, they’ve basically taken a “we don’t take a position on it, and believe government should stay out of it, but leave it up to the States.” In practical effect that’s the status quo more or less, with the States being the primary crafters of abortion policy, and the Supreme Court deciding when they break the rules. But for the hardcore pro-lifers this wouldn’t be acceptable, especially Johnson’s “acknowledgement that abortion is the law of the land.”

46

In other words, libertarians?

47

As outlined above, the only post-WWII third candidates to win any EVs at all got them by running on segregation. Before that, you had very organized party headed by a popular former president (Teddy Roosevelt) and before that you had to go to 1892 when people were even more angry about the direction of the country than they are now. Not. Gonna. Happen.

48

Has anyone run the numbers to see what would happen if the vote did get to the House, one state, one vote?

49

Trump would be elected. The Republican Party holds most of the seats (or the only seat) in 32 states, the Democrats in 16. There are two states where it’s split; Iowa and Nevada.