House rules

Tim Montgomerie posits that, if the US presidential election comes down to a four-way between Bernie Sanders (Dem), Marco Rubio (Rep), Donald Trump and Michael Bloomberg (Ind), Mr Sanders wins by a ten-point margin. This seems to be borne out by the YouGov panel which CapX consulted to come up with this answer, and I think there is fairly good evidence to suggest that Bernie Sanders would hold the Democratic vote against Bloomberg together better than Marco Rubio would against Donald Trump. It is important, however, not to confuse Mr Sanders winning in the popular vote with President Sanders being inaugurated in January 2017. This is because of the Electoral College.

In the United States, American citizens do not vote for President, they vote to send electors to the 538-strong Electoral College who vote (usually) for their respective candidate. Each state has a certain number of electors, one for each of their Representatives and Senators, plus three more from the District of Columbia. Forty-eight states give all their electors to whoever wins the statewide ballot; Maine and Nebraska give two each to the statewide winner, apportioning according to the winners in each congressional district to reflect their Representatives and Senators. If any candidate gets 270 votes (an absolute majority) in the Electoral College, he or she is elected President. The same process occurs for the election of the Vice-President.

Lashed screaming to the tracks in front of the clunking great anachronism train of the Electoral College, you may hear the obvious question rumbling obliviously toward you: what if no candidate wins enough states to get 270 electors? This seems eminently plausible with the four candidates running: Mr Rubio could easily take 29-elector Florida, for example, while Mr Bloomberg would present a strong challenge to seize the 29 electors from New York (and perhaps even the 55 from California). We must turn to the Twelfth Amendment to find out what happens in this scenario, and it’s more bizarre than one might first expect.

The Amendment reads:

…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.

In plain English, what the Amendment means is that the House of Representatives must choose the  President from the three top-scoring candidates in the Electoral College (not in the popular vote). However, in doing so, individual Representatives do not get a vote; rather, their whole state’s delegation does; the new President, meanwhile, would need the support of at least 26 of the 50 states in order to take the oath of office on 20th January.

I’ll illustrate with an example. Say Mr Sanders wins a swathe of the East Coast, Mr Rubio the Mid-West and lower East Coast, Mr Trump the South and the Mexican border, and Mr Bloomberg New York and (for argument) California. For simplicity’s sake, we’ll suppose that Maine and Nebraska’s electors all go to one candidate, notwithstanding their somewhat unusual system (see above).This is, of course, fanciful, as it’s hard to predict how this four-way race would go in each state, but these numbers will serve for the point.

Let’s assume our notional Electoral College looks like this:

Candidate Electors
Bernie Sanders 160
Marco Rubio 176
Donald Trump 118
Michael Bloomberg 84
Total 538


This would mean that the House of Representatives, still composed wholly of Democrats and Republicans, would have to choose between Bernie Sanders, Marco Rubio and Donald Trump, since the fourth-place Bloomberg would be eliminated. However, it would not be as simple as a standard party-line vote: rather, each state gets a vote, and each of the state delegations has its own internal majority. For example, the mighty state of Wisconsin sends eight Representatives to the House, of whom five are Republican. In a deadlock, Wisconsin would vote for a Republican President.

So how would they choose? Well, after the 2014 mid-terms, the congressional districts look like this, making somewhat discouraging viewing for the Democrats:

Yet more important than the raw congressional districts (246 Rep, 188 Dem) is the fact that Republicans hold a majority on 31 of the 50 state delegations (the Democrats have 16 majorities, and there is a tie in the delegations from Maine, New Hampshire and New Jersey). Assuming Marco Rubio manages to get into the top three in the Electoral College, then, he will almost certainly become President: no matter what happens to the House of Representatives in November, the new House won’t take office until 3rd January and the old, Republican-dominated, 114th House of Representatives will choose the President after the Electoral College meets on 21st December.

This is by far the most likely scenario: If the Electoral College looks likely to divide, Mr Rubio’s chances of becoming President skyrocket regardless of which candidate commands the allegiance of a plurality of the American people, because the Republicans hold a majority on a majority of the state delegations to the House of Representatives. (Whew.)*

A thought may occur to you: what if the 114th House of Representatives, balloted as prescribed in the Twelfth Amendment, fails to come to an absolute majority decision before the new, 115th House takes office on 4th January? Indeed, with the inspirational figure of Bernie Sanders at the front of their campaign, the Democrats might (maybe!) manage to replicate their 2008 results, giving the 115th House a Democratic majority. If this happens, we can see almost a mirror image of the 2014 House: the Obama wave delivered 34 Democrat-majority House delegations to 15 Republican, with Idaho as a perfect tie. In this case, against all odds, President Sanders is duly elected in the nick of time before Inauguration Day by an absolute majority of the states. (Double whew.)


Pause for a moment and take a breath. What if no decision is made by Inauguration Day on January 20th? Well, if this situation lasts until then, the Vice-President-elect will serve as acting President until one is chosen by the House. But how, in this state of deadlock, is the Vice-President chosen?

An aspirin might be helpful at this point.

…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.

Unlike the House, the Senate is only entitled to choose between the two top-ranking candidates in the Electoral College, presumably the respective running mates of Bernie Sanders and Marco Rubio. As it stands, the 2014 Senate is majority-Republican, while it was Democrat-controlled in 2008, so if the vote follows the two scenarios already described there shouldn’t be too much administrative fuss and the victorious President would have the understudy of his choice. This would, on the analysis outlined above, probably be Marco Rubio’s (or Donald Trump’s!) running mate, who would be elected as Vice-President by a simple party-line vote in the Republican-majority Senate.

Yet since the Democrats might conceivably win back control of the House on an Sanders sweep, this gives us the intoxicating possibility that the two Houses of Congress could pick a socialist Democrat as President and a Republican (or Trumpist) Vice-President, depending on who comes in the top two in the Electoral College. This sounds like a hilarious quirk of fate or perhaps the setting for an excruciating political satire (like Veep meets Starsky & Hutch), until we remember that of the 43 individuals to have served as President, eight have died in office, giving the job a base mortality rate of 18.6%. Bernie Sanders, meanwhile, will be 75 on Inauguration Day 2017, the oldest President in history.

The final step, if the Senate is tied (50-50), is that the job of acting President falls to the next on the presidential line of succession after the President and Vice-President, until either branch of Congress gets its act together – which, given the Senate’s enthusiasm for the filibuster, could be rather a long time. As everyone knows, the second in line to the Presidency is the Speaker of the House, who is…


Perhaps this was his plan all along!

So there you have it. On my analysis, the The Twelfth Amendment allows the House to elect a candidate who failed to win the popular vote, or gives us President Sanders and a Vice-President chosen either by Marco Rubio or Donald Trump, either of whom could become President at the drop of a geriatric. In extremis, it leads to (acting) President Paul Ryan. In other words, we face once again the hypothetical possibility that US would have the first President in known history who wears a baseball cap to weightlift. What better reason for reform could one need?

*I wrote this back when Rubio was a vague possibility and hadn’t had his teeth knocked out by Donald Trump. As it stands, now, there’s more of a chance of the three candidates in the House each being repugnant to a majority of voters. I think what happens then is that the House will choose by “ballot”, which seems to mean two rounds of voting, eliminating the lowest-ranked candidate after the first round. This possibility is alluded to in this National Review article, discussing the potential effects of a McMullin win in Utah upsetting the Electoral College. (RN 2016-10-12)


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