There has been a lot of rumbling lately about the forthcoming election, Trump, probably convinced he will lose otherwise, decrying the validity of the election and casting doubt on the electoral process. Those opposed to Trump fear what might happen if he refuses to leave.
Some historical perspective is in order. Contentious elections are not unknown, the first being in 1800 between Jefferson and Adams. There was a tie in the Electoral College. Before ratification of the 12th Amendment in 1804, each Elector cast two votes. The individual getting the most votes became president, the second highest became vice-president, so in 1796 Adams became president and Jefferson his vice-president even though they were in opposition in most matters. In 1800, the “parties” nominated slates: Jefferson/Burr and Adams/Pinkney. The plan was for one of their electors to vote for someone or abstain thus assuring victory for their preferred presidential candidate. As with most conspiracies, it didn’t work as planned. Jefferson and Burr both got 73 electoral votes, a tie for president, thus resulting in the need for a contingent election. (A terrific book on why and how this was resolved is Negro President: Jefferson and Slave Power by Garry Wills.) Bear with me, this may have huge implications for 2020.
In 1824 arose an unusual situation. There were four candidates running: JQ Adams, Jackson, Henry Clay, and William Crawford. Jackson received the most electoral votes as well as the most popular votes. However, because he had not a majority of the electoral votes cast, the election was thrown in the House. Under the 12th Amendment, the Senate would vote for the Vice-president, each Senator getting one vote, and it stipulated that the selection of president could be made only from the top three contenders. (The 20th Amendment changed to date of assuming office from March to January.) So the House had to pick between Adams, Jackson, and Crawford. Note that each state got one vote, irrespective of the number of representatives. (Keep that in mind.) With 24 states at the time, an absolute majority of 13 was required. Thanks to some politicking by Clay, who was Speaker of the House, and a state delegation in Kentucky that ignored the non-binding resolution of the state legislature by voting for Adams, Jackson was defeated. Adams received 13 votes thus denying Jackson the presidency even though he had the popular vote and more electoral votes.
At noon on January 20th, Trump, assuming the election has not been decided distinctly in his favor by the Electoral College, will cease to be president and Pence will no longer be vice-president. They will have no presidential powers. According to the 12th and 20th Amendments and the Presidential Succession Act of 1947, Nancy Pelosi will become President until such time as the election is certified. The weirdness might come if neither candidate gets a majority in the Electoral College. Then the election is resolved by the House with each state getting one vote. Currently, the Republicans control the legislatures of 26 states. (This could all change in November, though, and the new House and Senate will be seated January 3rd and states may change.) So it’s conceivable (!) that if Biden fails to get a majority of electoral votes and it goes to the House, that Trump could be re-elected by those legislatures even if Biden wins the popular vote and most of the electoral votes.
It’s time to dump the Electoral College.
Further reading see George Dangerfield, George. The Awakening of American Nationalism: 1815-1828 (1965)
3 comments:
Eric, I need to correct what you said in the last paragraph. The state legislatures have nothing to do with a contingent election. Each state delegation in the House of Representatives takes a vote among the members of that delegation. If Trump gets 4 votes and Biden gets 3 votes in the state delegation, the delegation casts their one vote for Trump. If it's tied, the state cannot vote in the House of Representatives. See the 12th Amendment. Alan
Alan E. Johnson
Author of The Electoral College: Failures of Original Intent and a Proposed Constitutional Amendment for Direct Popular Vote (Pittsburgh: Philosophia, 2018).
Thanks so much for the correction. You are absolutely correct of course. I suspect I was misled by the Kentucky legislature's attempt in 1824 to have their delegation of representatives vote for Jackson, which they ignored. This is such a chaotic year, it would be interesting to see if states like Maine or Nebraska that have proportional allocation of electors makes any difference. I will have to read your book, but am curious what you think of the constitutionality of the Interstate Vote Compact.
The Compact is an interesting idea, but the Republicans have pledged to make a massive legal onslaught on it if enough states join to make it effective. The main problem is the Compact Clause in article I, section 10, paragraph 3 of the Constitution. If the Democrats gain control of both houses of Congress, they could avoid the Compact Clause issue by having Congress consent to the Compact per this clause. I discuss issues regarding the Interstate Direct Popular Vote Compact on pages 136-38 (in chapter 5) of my book. The proponents of the Compact argue, however, for its constitutionality and legality even without congressional consent.
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