In My Opinion
Conceivably, the House of Representatives Could Choose the Next President
By Kristian Whitten
(The writer is a retired California deputy attorney general.)
Thomas Jefferson is quoted as saying that “[e]very generation needs a new revolution.” Given that he drafted the Declaration of Independence and participated in our Revolutionary War, and as the United States’ minister to France witnessed the bloody French Revolution, his belief is uniformly construed to refer to non-violent change necessitated by his understanding that “[t]he earth belongs always to the living generation.”
That quote is from a Sept. 6, 1789 letter from Jefferson to James Madison in which he also recognizes:
“Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents….”
With the ever-increasing divisiveness and uncertainty emanating from our nation’s capital, and the overwhelming public disgust with the likelihood that the Democratic and Republican parties will provide us with another Biden/Trump contest for President in 2024, the possibility that one or more “third party” candidates might deprive both the Republican and Democratic presidential candidates of a majority of the necessary electoral votes could take on greater significance.
Is this the type of “revolution” that Jefferson envisioned?
Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents.
Under the Twelfth Amendment to the U.S. Constitution, if no candidate receives a majority of the electoral votes for president, “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.”
If that were to happen, “the votes shall be taken by states, 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.”
Thus, the quorum required for a vote of the states would be 34, and a majority of that vote would be 26 states.
Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming—each with only one House member—would have a single person deciding how those states would vote, but the other 43 state delegations who may not agree among themselves on a single candidate might find the task more challenging.
Presently, thirty-seven states have less than 10 House members in their delegation, and that is more than two-thirds of the states.
One author who did the math posits that, assuming one vote each from (1) all of the one-representative states; (2) six two-representative states, (3) four three-representative states; (4) two four-representative states; (5) three five-representative states and (6) six-representative states, it is theoretically possible that the 106th Congress House in 2001 could have elected the President “with the support of twenty-six of the twenty-eight states whose delegations had fewer than seven representatives.” William Josephson, “Senate Election of the Vice President and House of Representatives Election of the President,” 11 U. Pa. J. Const. Law 597, 607 (2009).
A bit of history: the Constitution’s original Article II, section 1 contemplated individual candidates, and gave each state elector two votes, with the president-elect being the candidate getting the most electoral votes, that were at least a number equal to “a Majority of the whole Number of Electors appointed.” The vice president-elect was the second-place finisher. That is how Thomas Jefferson became vice president under President John Adams.
But in the election of 1800, the Constitution’s framers’ avowed fear of “factions” (see, e.g., “The Federalist No. 10 (James Madison),” (Jacob E. Cooke, ed. 1961) at p. 56 (describing “the violence of faction”), had morphed into the very factions they had warned against. See California Democratic Party v. Jones (2000) 530 U.S. 567, 591 n.2 (Stevens, J., dissenting) (“Prominent members of the founding generation[’s]...anti-party thought ultimately proved to be inconsistent with their partisan actions”).
As members of their respective Federalist and Democratic Republican parties, Adams and Jefferson, who had worked together on the Declaration of Independence and initially spoke out against political parties, had become virulent partisans.
Thus, in that election, the political parties nominated “tickets” for president and vice president, and devised a plan whereby one of their two candidates would get one less vote than the other. But Jefferson tied in the Electoral College vote with fellow party member, Aaron Burr, so the House had to decide which one of them became president. Jefferson was eventually elected President, and Burr Vice President, but the kerfuffle led to the Twelfth Amendment, which calls for, among other things, separate electoral ballots for each office.
There have been 22 presidential elections in which three or more candidates qualified for the ballot, and in addition to Jefferson’s election by the House, in the election of 1824, even though Andrew Jackson got the most electoral votes, because he did not get a majority, the House was able to elect John Quincy Adams president.
And although Teddy Roosevelt’s “Bull Moose” ticket didn’t win in 1912, it beat Republican incumbent William Howard Taft. In 1968 George Wallace won more than 13 percent of the vote and carried five Southern states, and in 1980, John Anderson got 6.6 percent of the vote. In 1992 Ross Perot finished with 19 percent of the vote, followed by 8 percent in 1996. However, none of them prevented the Republican or Democratic candidate from getting a majority of the electoral votes.
One difference today from the two House-decided presidential elections is that, in those days, it was the “lame-duck” House that decided the election. With the ratification in 1933 of the Twentieth Amendment, which changed the dates upon which the presidential, Senate and House terms begin, any such House-decided presidential election will be in the incoming, rather than the lame-duck, House. See generally, John Copeland Nagel, “Lame Duck Logic,” 45 U.C. Davis Law Review 1177 (2012).
Given today’s technology, enough money, and the apparently widespread grass-roots frustration with the two-party status quo, would it be possible for a third party, to successfully persuade enough States’ voters to provide what’s needed to deny an Electoral College majority to both the Democrats or Republicans, and elect incoming House members who will agree to vote for the party’s platform and its candidate for president?
Conceptually at least, even if it didn’t end up with the House electing a third party’s presidential candidate, such an effort might result in enough third-party House members being seated and able to caucus together, so as to deny the Republicans or Democrats an absolute majority.
Such a step would be a move away from the current divisive bipartisan monopoly, and toward a more nonpartisan, or at least coalition, approach to governing, that may be more interested in and responsive to the needs of the governed.
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