The great thing about the U.S. Constitution is that the Founding Fathers thought of everything: what to do with the Second Amendment if future people invented AK-47s, for instance. Ok so maybe they didn’t get that one, but they did spend a decent amount of time thinking through what-if scenarios and making sure the document would provide a roadmap for many generations of freak accidents and unlikely outcomes.
For instance: what to do if a presidential election results in a tie?
This year the issue has been getting particular attention because nationally the race is very close—Obama and Romney are polling within about a point of each other. While the New York Times’ poll guru Nate Silver is still laying odds at 70% of an Obama victory because of the way the electoral college votes are likely to fall, Rachel Maddow ran through an exercise last night that would put all the Founding Fathers’ brooding over what to do in the event of a tie to good use—and it actually doesn’t seem that unlikely.
You need 270 electoral college votes to win—right now Obama has 237 likely votes in the bank from blue states and Romney has 206 from red states. Among the swing states, if you give the likely Obama-leaners like Ohio, Iowa, Wisconsin, maybe Colorado to the president and give the others—Florida, Virginia, maybe Nevada—to Romney, it’s possible that the election could end up at an electoral college tie, 269 to 269.
In that case, the president gets chosen by the House of Representatives—but instead of voting weighted on population as determines the actual makeup of the House, each state gets just one vote and the Reps from that state have to decide their vote together. If that vote comes out a tie—25 to 25—guess who becomes president: Speaker (Weeper) of the House, the Orange Wonder John Boehner.
Also very weird is that the VP actually gets picked by the Senate in the case of electoral college tie, so if the House were Republican controlled and the Senate Democrat controlled, you’d probably actually end up with President Romney and his VP Joe Biden. Crazy, right?
My question is this: The Founding Fathers clearly spent a lot of time making all these rules. But if they were such geniuses why didn’t they avoid this whole problem by just making the number of votes in the electoral college an odd number? The whole electoral college vote number was an arbitrary device anyway, and if they’d just made the total number odd you could never have a tie.
October 25, 2012 at 2:35 pm, Llano Arbol said:
RE: The whole electoral college vote number was an arbitrary device anyway, and if they’d just made the total number odd you could never have a tie.
Because in 2012 there are 50 states and in 1776 there were 13?
October 25, 2012 at 2:36 pm, Joshua Morris said:
The number of electoral college votes a state gets is its number of Representatives + 2 Senators. Not arbitrary. When the Constitution was written there were only 13 states.
October 25, 2012 at 3:31 pm, Ben Scalise said:
interesting article..
October 25, 2012 at 3:55 pm, Terry McIlveen said:
If boehner becomes acting president either the revolution or the impeachment begins on Jan 21.
October 25, 2012 at 5:24 pm, Brian Allen said:
Can you please cite the applicable section of the Constitution for this assertion?
October 25, 2012 at 8:05 pm, Andrew Fadale said:
This article is wrong. See Section 3 of the 20th Amendment, which supersedes much of the 12th Amendment. 25-25 tie in the House causes the Vice President Elect, selected by the Senate, to become President (which would almost certainly be Joe Biden). If both the Senate and the House fail to select a President, John Boehner becomes President only until a President or Vice President is duly selected.
October 26, 2012 at 3:11 pm, Vince Matal said:
Andrew, you are close. The 20th Amendment says nothing about the Speaker taking over. The line of succession outlined in Article II is in the case of a sitting President unable to complete his term. The 20th Amendment does not supersede the 12th, but rather clarifies it: "..Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." Does not say it is the Speaker of the House. Even more so, it states "Congress may by law provide" which can be read, I would assume, as both houses of Congress. Needless to say, it would be an absolute mess. Bottom line, Maddow is wrong.
October 26, 2012 at 3:47 pm, Andrew Fadale said:
Yep, that's right. I put in the last sentence just to summarize the circumstances under which the Speaker (as the law is now) becomes President, didn't mean to imply that it was a matter of Constitutional law. I think the Presidential Succession Act of 1947 provides for a situation where a President fails to qualify (and thus there is no President), and that law provides for succession by the Speaker. I think It is pretty remarkable to see the number of secondary posts that clearly used Maddow as their factual basis without verification.
October 26, 2012 at 4:08 pm, Vince Matal said:
The Succession Act is applicable when a sitting President is no longer able to perform his duties, which is not the case here. Your point about people using Maddow as their source is truly scary, especially when it relates to something that can be verifired with a simple read of a readily available document: The Constitution
October 26, 2012 at 4:15 pm, Andrew Fadale said:
"[I]f, by reason of death, resignation, removal from office,** inability, or failure to qualify,** there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President." That is why I think the Succession Act would apply here, but Congress reserves the power to change that law and/or replace it entirely.
October 26, 2012 at 4:40 pm, Vince Matal said:
I still think the Succession Act applies to a sitting President/VP since Article II, Section I, Clause 2, later clarified by the 12th Amendment, later changed by the 20th Amendment, defines the electoral process and contingencies in case of no clear winner: "…Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." Nothing to do with the Succession Act, IMO, but I am FAR from a Constitutionalk scholar. Regardless, a Constitutional crisis would occur should there be a tie.
October 25, 2012 at 10:33 pm, Ooty Cat said:
Presidential elections don't (even possibly) have to be this way.
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
Every vote, everywhere, would be politically relevant and equal in presidential elections. No more distorting and divisive red and blue state maps. There would no longer be a handful of 'battleground' states where voters and policies are more important than those of the voters in 80% of the states that now are just 'spectators' and ignored after the conventions.
When the bill is enacted by states possessing a majority of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC.
The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.
The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.
The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes – 49% of the 270 necessary to go into effect.
NationalPopularVote
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October 26, 2012 at 1:35 pm, Vince Matal said:
Completely incorrect. There is nothing in the Constitution that states the Speaker becomes President. Section 3 of the 20th Amendment states that "…Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified." Says nothing about the Speaker. If you are getting constitutional interpretation from Rachel Maddow, that is a sad, sad thing. How about actually READING something?
October 26, 2012 at 1:39 pm, Barry Campbell said:
Article II, Section 1, Clause 6 makes the Vice President first in the line of succession and allows the Congress to provide by law for cases in which neither the President nor Vice President can serve. The current such law governing succession is the Presidential Succession Act of 1947 (3 U.S.C. § 19).
[http://en.wikipedia.org/wiki/United_States_presidential_line_of_succession]
October 26, 2012 at 1:53 pm, Vince Matal said:
Barry, that is related to "…Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office.." not election. The 12th Amendment and the 20th Amendment determine electing the President.
October 26, 2012 at 1:56 pm, Barry Campbell said:
Whoops, quite so.