How Hillary Clinton or Ron Paul Could Still Become President
No, it’s not likely that Hillary Clinton, Ron Paul or anyone else besides Barack Obama or Mitt Romney will take the oath of office on January 20, 2013. But a close race could make this scenario possible, if not plausible.
Why aren’t the media warning us about this??
In fact, the wild-and-crazy outcome would be a journalists’ dream come true. The Bush-Gore recount would look like child’s play as media organizations breathlessly reported and speculated about each twist and turn. A run-of-the-mill electoral crisis would just seem . . . boring
Here’s how it works. If no candidate receives a majority in the Electoral College, the race would go the House of Representatives under the 12th Amendment. This scenario has been raised frequently in recent days as the possibility looms that Obama and Romney could tie with 269 electoral votes. This situation isn’t likely, Nate Silver at 538 gives it only 0.5 percent chance of happening as of October 24, but it’s not impossible. And if it does happen, a panicked fix dating from the Jefferson administration opens a range of chaotic options that might give Hillary Clinton or Ron Paul, not to mention Joe Biden and Paul Ryan, a shot at the presidency.
The 12th Amendment was ratified in 1804 after the original method of allocating electors led to a constitutional crisis. Prior to its passage, the candidate who finished first in the Electoral College became president, and the second-place finisher became vice president. This led to a tie in 1800 when both the Democratic-Republican nominee, Thomas Jefferson, and his running mate Aaron Burr received 73 electoral votes. The election was thrown to the lame duck House then dominated by the opposition Federalist Party, which thought Jefferson to be a radical but found Burr more moderate. There was a stalemate that lasted until Alexander Hamilton intervened to persuade the lawmakers to back Jefferson (who he merely disliked politically, in contrast to Burr, whom he despised personally) on the 36th ballot (Jefferson also may have won the vote of the lone congressman from Delaware, a Federalist, with a promise of patronage).
The crisis prompted Congress to go back to the drawing board and divide the election of the president from that of the vice president. The result was some peculiar procedures in the event no presidential candidate received a majority in the Electoral College. In that case, the election goes to the House, where the Constitution requires that body to choose “from the persons having the highest numbers not exceeding three on the list of those voted for as President.” This means that a defection from one devoted Paul supporter who became a Republican elector from a state like Nevada, or a diehard PUMA on Obama’s slate of electors from New Jersey or New York could give their candidate a shot at the presidency. After all, if the race is already tied, what is the harm in giving their candidate a shot?
The result of this longshot scenario would be chaos. If the race goes to the House, voting takes place on a state-by-state basis. The lone congressman from Alaska is as important as the 53 congressmen from California. These rules give the advantage to the Republicans, but imagine the temptation for libertarians and conservative Romney skeptics in the House to vote for Ron Paul. And if Obama gets a majority of the popular vote, Republicans could play spoiler and elect Hillary Clinton. That would allow them to both defeat Obama while still paying lip service to a Democratic majority in the country.
Something similar could happen merely by accident. Electors have accidentally mixed up their ballots on several occasions, including in 2004, when one Democratic elector from Minnesota accidentally backed John Edwards for president instead of John Kerry. Instead of the ideologically dubious Romney, the House GOP could put conservative darling Paul Ryan in the Oval Office if, in a tied election, a Republican elector mixed up his ballot papers.
According to Vikram Amar, a law professor at University of California, Davis, these scenarios could get even more bizarre. He notes that constitutionally, that a winning candidate needs only a majority of the electors appointed. For example, if Florida has yet another electoral meltdown and fails to even appoint electors, the magic number becomes 255, not 270, once the Sunshine State’s 29 electoral votes are removed from the equation.
But even without such a meltdown, there is plenty of potential for a constitutional crisis to become even more baroque. If there are multiple faithless electors and there is a tie for third place in the Electoral College, then what becomes of the constitutional mandate that only the top three advance?
A situation with both a tie election and a faithless elector backing a third candidate is not very likely. But, as these scenarios go, it’s a lot more interesting than counting hanging chads.
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