Careful what you wish for....

[captainsblog]

In my travels yesterday, I heard an NPR report about the possibility of a serious third-party candidacy for President in 2012. Since the wingnutty right is quite displeased with the two current leaders in their One Percent Clubhouse, there's talk of one of its way-off-the-deep-end saviors going rogue and siphoning votes off the eventual GOP nominee. (Ron Paul is one such option, referred to in the NPR report as "Ralph Nader on steroids.") It also wouldn't shock me if Nader made another vainglorious run himself, or if someone like Bernie Sanders came out of far left field.  In a bitterly divided electorate, those potentially spoilery votes could have a serious impact.

At first, I thought while driving, yay! A Ron Paul-type thirdster would definitely hurt the Republicans more, and most Democrats are smart enough not to risk wasting their vote Nader-style again after the clusterfudge it produced the last time. (I think you'd see a lot of vote-and-trade protest vote deals going, where Florida Nader voter would hold her nose and vote for Obama in exchange for an unneeded New York voter checking Ralph's ticky box.)

Yet, hey! Let's be careful out there. For if any of these candidates were to mount a serious enough race to win an entire state (such as Paul taking Texas), even a small one (such as Bernie outpolling Obama among the Moosemonters), we could wind up with a scenario not seen since the days of powdered wigs: no candidate having an electoral vote majority.  That, in turn, would bring the Twelfth Amendment into play, possibly the most important piece of Constitutional content of our lifetimes that nobody has previously ever thought or cared about.

RTFC:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

This is what is always, and I mean ALWAYS, referred to in political speculation as the election of our leader being "thrown" into the House of Representatives. And it has only been thrown there once in the post-amendment history of the nation: in 1824, when Andrew Jackson won the most, but not enough, electoral votes in a four-way race and wound up losing to John Quincy Adams in the House vote. 

Note two key points, one clear and one un.  Only the top three finishers get to be considered for the job. So in a Obama-Romney-Paul-Sanders scenario, House members could only choose among the three leading finishers (not necessarily those with the most popular votes or even the most states "won," since the electors themselves can, and occasionally do, go "off the board" and vote for someone other than "their" candidate). The House would be limited to that field, and the votes would be by state, producing a much different scenario than the mostly all-in tallies of state majority popular votes for their electoral vote distributions.

Ah, but which House does the voting? The one elected nationwide on the same day as the presidential election , or the "lame duck" one still technically in office on the day the electors vote in December (i.e., the current Class of 2010, which has thus far accomplished nothing but voting to repeal Obamacare, make abortion illegal and ensure that "In God We Trust" is our national motto because "E Pluribus Unum" sounds too socialist Kenyan homosexual or something)?

You'll love this: the 12th amendment doesn't say.  In the only precedent, that of 1824, it was the lame duck House that gave Quincy, Jr. the job his daddy used to have.  Although at least one analysis says that the amendment was passed specifically to prevent a House election contravening the Election Day expression of popular will, the amendment itself doesn't bother to leave in that date-ish detail.  You can bet the loser will go all the way to the Supremes over that one.

But wait- there's more. The last part of the amendment goes on about the contingent procedure to be applied if no Vice-Presidential candidate secures a majority:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Note the subtle differences there: Senate voters rather than House ones; no state-bloc voting (the thinking, likely, being that Senators already represent their entire states); and only the top TWO finishers in the electoral voting are eligible.  Now, double back to the previous paragraph: if the House remains deadlocked in its choosing among three, and the Senate finishes its seemingly easier work and names a Veep, he (or, ::shudder:: she) becomes the President on the 4th of March, and stays there until and unless the House names a winner. (That March 4 date ties in to the old inauguration date of the POTUS, which was changed by the 20th amendment to the current January 20 date, but which amendment did not adjust the date set forth in the 12th.)

So if the majority of the House member delegations decided to do it, they could permanently disenfranchise a majority popular vote of the people of this country, by being dilatory, politically motivated and determined not to accomplish their Constitutional task.  I am shocked, SHOCKED to hear you say that this current incompetent bunch of Teabagger-led morons would even consider such gambling within their establishment!

I pray this whole post will go down as an obscure footnote to speculative history and that we'll never have to worry about any of these issues. Until a year from January, though? I'm gonna be getting even less sleep overnights.

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