President who?

By Bruce Walker
web posted September 18, 2000

Looking today at the Electoral College map and at which states George Bush and Al Gore appear likely to carry, the election looks very close. When the District of Columbia was granted by constitutional amendment three electoral votes, the number of total votes cast by the Electoral College was changed from an odd number to an even number. It became possible for an election to end in a tie.

Traditionally, the populous and diverse states like Texas, Illinois, Pennsylvania, and California, have produced nail biters. This cycle, several large states are very much in play and will be vital to each candidate. But an unusually large number of these big states are committed, including the Big Three - California, New York, and Texas.

In contrast to large states, small states, with homogenous populations and historic voting patterns, have tended to vote by lopsided margins in presidential elections. This time around, however, a large number of these small states are very much in play - Maine, New Mexico, New Hampshire, West Virginia, and Delaware. Each of these states has three to five electoral votes.

Several slightly larger states are also up for grabs. Some of these, like Arkansas, have usually gone for a candidate by landslide margins and are now hotly contested. Others, like Iowa, have always been battleground states.

Because the electoral college race is so close now and because so many low vote states are undecided, the prospect for a tie in the Electoral College is not at all unthinkable. In fact, if one "pushes" the undecided states the way they appear to lean right now, a tie - 269 electoral votes for each major party candidate - would result.

Ralph Nader
Nader

It has been thirty-two years since a third party candidate earned electoral votes, but Ralph Nader has a shot at doing that in Oregon. With four candidates in the race, Nader might carry Oregon with as little as thirty percent of the vote. In a very tight election, those votes could deny Gore or Bush the required majority of the electoral votes.

What happens then? There are several scenarios. First, as any good civics student knows, an individual chosen in the presidential elector as an elector is not constitutionally bound to vote for any particular candidate or even a formal candidate. These electors are typically party diehards, given a honor for long and faithful service, but electors can - and bolted and voted for someone else. In 1988, 1976, and 1972 one elector voted for someone other than the party nominee who carried the state.

Why might that happen? If Bush or Gore received a clear majority of the popular vote and the other major party candidate got a significantly smaller percentage of the popular vote, then a public spirited elector might decide to yield to the will of the people. Since our presidential electors have uniformly been decided by average voters (the Constitution does not require popular election of electors) only once, in 1876 when Samuel Tilden had a majority and Rutherford Hayes did not, has a presidential candidate gotten a clear majority of the popular vote and lost the election.

Here is another reason electors might exercise true discretion. Presidential electors were intended to debate, discuss, and vote for the best person to serve as President. The campaign may turn quite nasty, and Congress might well be divided after the election. If two or three electors from each party announced an intention to look for the best possible President and Vice President, then the Electoral College would be locked, with no candidate able to obtain the require majority for election.

There is a pool of retired public figures who are almost universally considered trusted, respected, thoughtful, and honorable people. Aside from Colin Powell who would probably decline, this group includes people like David Boren, Tom Ridge, Bob Kerrey, and John Danforth. What makes this conceivable is that the two offices could be filled on a bipartisan basis, and each could change party registration to "Independent".

A third option for electors' discretion might occur if Nader did carry Oregon, and kept a majority of the electors from either candidate. He could approach either candidate or either party and negotiate. Given his ideological inclinations, Nader would probably not select a conservative, but he might well opt for a rouge Democrat (President Russ Feingold?) or an independent (President Angus King?)

Although one can draw up some lovely figures in the clouds with uncommitted electors, probably all the presidential electors will stay put and vote as promised. Then what? The Constitution prescribes that the House of Representatives elect the President and the Senate elect the Vice President.

The Democrats would need a net gain of four seats in the Senate to prevent Dick Cheney from becoming Vice President. Although Republicans only have fifty-four Senate seats today, they look to pick up seats in Nevada and Virginia.. That means Democrats would need to gain a minimum of six current Republican seats (presumably these gains would be in Florida, Delaware, Michigan, Missouri, Minnesota, and Washington state) and to hold Democrat seats in Nebraska, New Jersey, and New York, each of which looks probable alone, but the combination of all three looks improbable.

Even if the Senate is evenly divided, it is not entirely clear what would happen. The Constitution requires a "majority of the whole", and that looks like fifty-one senators. On legislative votes, the Vice President breaks ties in the Senate, but this vote is a special constitutionally prescribed vote and so probably different. If the Vice President did get a vote, would that be Al Gore? His term of office ends at noon on January 20, 2001, and the House of Representatives has until March 4, 2001 to select a President (after which the Senate can elect the Vice President). But the new Congress is required to meet beginning at noon on January 3, 2001, unless by law a different date is set.

It sounds then like Al Gore would be Vice President when the Senate convenes on January 3, 2001, but does that mean that a tied Senate would elect Joe Lieberman as Vice President? Presumably, if the Senate voted, yes. The Senate, however, might well not vote. The Constitution provides the Senate with the right of unlimited debate. The Cloture Rule was adopted as a way around this tribunician power of a single senator to stop legislation, appointments, and treaties. Over the years, the number of senators required for Cloture has declined to three fifths (or sixty senators). Neither party will have sixty senators in 2001.

So, do Republicans filibuster until Al Gore is constitutionally no longer Vice President? What would happen then? The Senate would have no formal presiding officer, and Democrats would doubtless filibuster to prevent Dick Cheney from being elected Vice President. If Republicans did not filibuster, then Joe Lieberman would be elected Vice President, and he would then immediately move his party from being the majority party in the Senate to becoming the minority party after Connecticut Governor Rowland appointed a Republican to take Lieberman's senate seat.

Who would be President? The House of Representatives makes that choice, and Democrats have an excellent chance of obtaining a narrow majority in the next Congress. Control of the House of Representatives, however, does not mean control of the constitutional pejorative of that body to elect the President in case of a tie.

Each state collectively has one vote in this process, and a majority - twenty six states - are needed to select the President this way. Right now Republicans control exactly twenty-six delegations, if Virginia, with five Republicans, five Democrats, and one Independent committed to vote with Republicans to organize the House as a Republican, breaks the way it looks. Democrats control twenty of the state House delegations, if one considers Vermont's Socialist Congressman as a Democrat. Four states have evenly split delegations - Arkansas, Illinois, Maryland and Nevada.

The partisan composition of these delegations are not going to change from one party to the other in the next election (the split is too wide). Some might change. Republicans have a majority of only one in two states: Tennessee and New Mexico. Democrats have a majority of only one vote in six states: Mississippi, Missouri, New Jersey, Pennsylvania, Washington, and Wisconsin. Each of those eight delegations has an odd number of seats, so a shift would not produce a tie. Most of those states have one competitive race.

It certainly looks like George Bush would be the next President, but he might be one of three people on the ballot (if Nader got any electoral votes, he would be on the ballot in the House as well - and Vermont's Socialist and only Congressman might well vote for him and deny either party the potentially vital state of Vermont!)

Dick Gephardt
Gephardt

One other strange outcome might be that either the President or Vice President is elected by the House or the Senate respectively, but the other constitutional office is not filled. The Succession of Office Act would devolve the Presidency on the Speaker of the House, who will be either Danny Hassert or Dick Gephardt, a pretty odd outcome. Even more peculiar, if one party has only a single vote majority in the House of Representatives, the man who left to become President might just have made the other man the new Speaker of the House, and shifted control to the other political party! Although it is hard to conceive of someone actually "declining" the Presidency, it is not unthinkable (particularly if the individual's party would control the White House anyway). Dick Gephardt in particular has been keen to become Speaker, and the next Governor of Missouri may well be a Republican. Still...Dick Gephardt has run for President, and would probably say "yes."

What about Danny Hassert? Two years ago he was not even thinking about being Majority Leader, much less Speaker or President. If Republicans lost the House when he ascended to the White House, Danny might say "thanks, but no." Who is next in line? President Pro Tempore of the Senate, who currently is Strom Thurmond, the oldest person ever to serve in the Senate.

If the Senate is tied, then the same problem arises as with the Speaker. Senator Thurmond comes from a state with a Democrat Governor and, in the unlikely event that the Democrats gained control of the Senate, Senator Byrd of West Virginia (the presumptive President Pro Tempore) comes from a state with a Republican governor. In either case, taking the Presidency would cost control of the Senate. Both senators are deeply devoted to the Senate, and it is not impossible they would decline.

The next in line is Madeline Albright, Secretary of State, but ineligible because she is a naturalized citizen. Who next? Try Lawrence Summers, the Secretary of the Treasury (not exactly a name that pops into mind when one thinks of presidential candidates!) Would he decline? If he did, then Secretary of Defense Bill Cohen would become the first Jewish president, and a Republican who endorsed George Bush at that!

All this could produce some very odd looking snapshots indeed! Dick Gephardt might be elected as Speaker on the same day that the House elects George Bush as President. Tennessee, Al Gore's home state, would be voting for George Bush, and Texas, Bush's home state, would be voting for Al Gore. Joe Lieberman could be voting himself into the Vice Presidency, and then resigning so that Trent Lott can resume being Majority Leader of the Senate, a body over which as Vice President he would preside!

What is the most likely result if any of these things comes to pass? The rapid passage of a new constitutional amendment that provides for popular election of the President and a runoff between the two top candidates if no candidate has received a majority, followed by four years under President Gephardt or President Thurmond or President Cheney or President Summers with everyone scratching their heads saying "We did what???"

Bruce Walker is a frequent contributor to The Pragmatist and The Common Conservative.

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