No one really expected the 2000 elections to be as “exciting” as they were. The issues in Florida involving “hanging chads” added terms to our language and electronic machines to our voting places. Unbeknownst to most people, the stage is set for the elections of 2012 to be more controversial than any in the history of our nation.
We learned in school that the voters do not actually elect our President. They cast votes which determine (in most states) how the electors from their state will vote when the Electoral College meets, then the candidate receiving a majority – not a plurality – of votes in the College is elected. The number of electors granted to a state is based on the population of the state. In some states, all the electors are bound to follow the popular vote; in others, the electors will split along the lines of the popular vote giving some votes to each candidate. In some, such as Texas, the electors are not bound by law to vote for any particular candidate. There are 538 electors; in order to win, a candidate must receive 270 votes. For the first time in recent history, there are at least twelve very possible scenarios that would result in no candidate for President or Vice President receiving a majority vote from the College.
When our Constitution was initially passed, the person who received the most votes for President took that office, while the runner up, following a hard campaign and all that goes with it (never mind that the two men undoubtedly had different philosophies of governing), became Vice President. The 12th Amendment, passed some 208 years ago, changed that. It has probably been awhile since anyone bothered to read that amendment, but it says in part “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. . . 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”
The methodology is fairly straight forward, although the last time it was used was 1824. In that election, four men were running for President. William Crawford received 11.2% of the popular vote carrying two of twenty three states, and received forty one electoral votes. Henry Clay received 13% with three states and only 37 electoral votes. The big guns in the election were John Quincy Adams with 30.9% of the popular vote, seven states and eighty four electoral votes and Andrew Jackson, who carried 41.3% of the popular vote, eleven states and ninety nine electoral votes. At that time, there were 261 votes in the Electoral College, and none of the four men managed to pull the requisite majority of 131 votes.
Pursuant to the 12th Amendment, the top vote getters (but not to exceed three) were submitted to the House of Representatives for a determination to be made. Each state receives one vote, its contingent of Representatives must determine in some manner which candidate will receive their support. The only template available is that of the session held in January of 1825 – a session which was held almost in secrecy. Understandably, the candidates engaged in quite a bit of politicking and influence pedaling to sway the states to themselves. Nothing in the rules requires that the Representatives vote along the lines of the majority of their popular votes or those of their Electors. If the election is thrown into the House, the top (not more than) three start from scratch.
According to the notes of the time, the House met in closed session to vote for President in 1825, and the ballots were kept secret then destroyed. It is certainly possible – although we will never know – that a state such as Massachusetts may have gone for William Crawford, and its Representatives threw their support behind another. The modern irony would be for neither Obama nor Romney to reach the magic number, allowing a third option to come into the mix in the House…and possibly win.
Of course, electors, while selected by the party faithful in their states, are expected to cast their votes honestly based on the popular vote in the state, every state has had “faithless electors”. These are the individuals who may choose to vote for someone other than the winner in their state. Only about twenty four states have laws which require the electors to support the popular winner in the state. Their names are known to the parties and the campaigns; it isn’t hard to imagine that they will be pressured into changing their vote before it is cast in mid-December. This would be the time a third party candidate would have the most to gain.
January 7, 2013 a joint session of Congress will be convened to open and count the electoral votes. Arguably, with a House controlled by Republicans, Mitt Romney would be their choice for President. In the Senate, each Senator is allowed to cast a vote for the Vice-President from (again) the (not more than) three top individuals from the Electoral Vote. Presumably, two of those would be the chosen running mates of the candidates from the major parties. With the Senate largely under the control of the Democratic party, Joe Biden could easily be their selection.
Wouldn’t it be interesting…to see Mitt Romney and Joe Biden working together to lead the nation? Certainly not a sure thing…but surely a certain possibility!
Lisa Peterson is the County Attorney for Nolan County. Comments about this column may be e-mailed to firstname.lastname@example.org