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12th Amendment Remedies - Blather. Rants. Repeat.
A Møøse once bit my sister ...
12th Amendment Remedies
This is essentially a re-post of a scare piece I wrote almost a year before the 2012 election.  I've updated some of the references to be appropriate to the current set of facts, the scariest of which set concerns the absolute shitshow coming out of Drumpf's mouth.  There are serious rumblings that he will drop out of the race rather than have his brand tarnished any further by attacks from Gold Star families and crying babies- and that the resulting scramble to replace him on 51 separate ballots under 51 separate sets of rules (the deadlines for some of which are coming up later this month) may make this an impossible task.

The scenario I wrote of in December 2011 is more plausible- and, Emily tells me, has already been used as a plot point on Veep.  So here- read it and eeep:

We must consider the possibility of a serious third-party candidacy for President. There's already a libertarian ticket with a former Republican moderate as its veep, who could result in Repubs going rogue and siphoning votes off the eventual GOP nominee, be it the Orange Numpty or his ballot successor. It also wouldn't shock me if Bernie Sanders came back into the game from his far left field position.  In a bitterly divided electorate, those potentially spoilery votes could have a serious impact.

At first, I thought, yay! A libertarian thirdster would definitely hurt the Republicans more, and most Democrats are smart enough not to risk wasting their vote Nader-style again after the clusterfudge it produced in 2000. (I think you'd see a lot of vote-and-trade protest vote deals going, where a swing-state Bernie voter would hold her nose and vote for Hillary in exchange for an unneeded New York voter checking Bernie's ticky box.)

Yet, hey! Let's be careful out there. For if any of these candidates were to mount a serious enough race to win an entire state (such as the libertarians taking a place like Utah), even a small one (such as Bernie, or his Comrade-by-a-Different-Momrade Jill Stein, outpolling Hillary among the Moosemonters), we could wind up with a scenario not seen since the days of powdered wigs: no candidate having an electoral vote majority.  And this doesn't even account for the never-decided issue of "faithless electors;" despite vetting and pledging, at least one elector has cast a vote for someone other than their state's designated "winner" - or at least withheld that vote from the winner- in seven of the fourteen Presidential elections occurring in my lifetime.

Be it spoileriness or faithlessness, it doesn't matter. If no candidate gets 270 electoral votes in December, that, in turn, would bring the Twelfth Amendment into play, possibly the most important piece of Constitutional content of our lifetimes that nobody has previously ever thought or cared about.


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. But in choosing the President, the votes shall be taken by states, the 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

This is what is always, and I mean ALWAYS, referred to in political speculation as the election of our leader being "thrown" into the House of Representatives. And it has only been thrown there once in the post-amendment history of the nation: in 1824, when Andrew Jackson won the most, but not enough, electoral votes in a four-way race and wound up losing to John Quincy Adams in the House vote.

Note two key points, one clear and one un.  Only the top three finishers get to be considered for the job. So in a Hill-Trump-Libertarian-Green scenario, House members could only choose among the three leading finishers (not necessarily those with the most popular votes or even the most states "won," since the electors themselves can, and occasionally do, go "off the board" and vote for someone other than "their" candidate). The House would be limited to that field, and the votes would be by state, producing a much different scenario than the mostly all-in tallies of state majority popular votes for their electoral vote distributions.

Ah, but which House does the voting? The one still technically in office on the day the electors vote in December (i.e., the current Class of 2014, which has thus far accomplished nothing but voting to repeal Obamacare 8,000 times and shutting down the government once), or the new and presumably more reasonable Class of 2016, likely to be more Dem if not majority-Dem after Drumpf drags down the party with his toxic coattails?

You'll love this: the 12th amendment doesn't say.  In the only precedent, that of 1824, it was the lame duck House that gave Quincy, Jr. the job his daddy used to have.  Although at least one analysis says that the amendment was passed specifically to prevent a House election contravening the Election Day expression of popular will, the amendment itself doesn't bother to leave in that date-ish detail.  You can bet the loser will go all the way to the Supremes over that one- and that said lineup will still be short a Pip (if not more than one) since the Senate's not confirming Scalia's replacement no way no how.

But wait- there's more. The last part of the amendment goes on about the contingent procedure to be applied if no Vice-Presidential candidate secures a majority:

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; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Note the subtle differences there: Senate voters rather than House ones; no state-bloc voting (the thinking, likely, being that Senators already represent their entire states); and only the top TWO finishers in the electoral voting are eligible.  Now, double back to the previous paragraph: if the House remains deadlocked in its choosing among three, and the Senate finishes its seemingly easier work and names a Veep, either Kaine or Pence becomes the President on the 4th of March, and stays there until and unless the House names a winner. (That March 4 date ties in to the old inauguration date of the POTUS, which was changed by the 20th amendment to the current January 20 date, but which amendment did not adjust the date set forth in the 12th.)  Worse, if the Senate manages to deadlock on its task, we're looking at, you guessed it- Commander in Chief Eddie Munster:

So if the majority of the House member delegations decided to do it, they could permanently disenfranchise a majority popular vote of the people of this country, by being dilatory, politically motivated and determined not to accomplish their Constitutional task.  I am shocked, SHOCKED to hear you say that this current incompetent bunch of Teabagger-led morons would even consider such gambling within their establishment!

I pray this whole post will go down as an obscure footnote to speculative history and that we'll never have to worry about any of these issues. But until and unless Hillary saves from all this speculation in January, though? I'm gonna be getting even less sleep overnights.
3 comments or Leave a comment
cafemusique From: cafemusique Date: August 4th, 2016 04:34 pm (UTC) (Link)
I know how foolish it is to rely upon Wikipedia for legal advice…

"(That March 4 date ties in to the old inauguration date of the POTUS, which was changed by the 20th amendment to the current January 20 date, but which amendment did not adjust the date set forth in the 12th.)"

Wikipedia suggests that the sentence with the March date in the 12th amendment was superseded by section 3 of the 20th. Does that make sense to you?
angledge From: angledge Date: August 8th, 2016 06:52 pm (UTC) (Link)
Barring a bear attack or the arrival of SMOD, Hillary is going to win. I'm quite confident of this outcome. I'm not really worrying about it any more. I spend most of my political thoughts now on whether or not the Dems can take the Senate, too. I think the House is out of reach but the Senate is very possible.
captainsblog From: captainsblog Date: August 8th, 2016 06:56 pm (UTC) (Link)
I'm slightly more pessimistic than you on the first- particularly if they do change the GOP ticket and all hell breaks loose- but I'm also more optimistic about the House. My former Congressman, redistricted a mile or two to the east, was the first incumbent to support Otto the Orange, and he's continued to carry his water right through the Khan kerfuffle. Even though he's in a drawn-for-a-Republican district, he's pissed off a lot of veterans and I could see him going down.

Find 20-30 or so more stories like that and we've got both houses back.
3 comments or Leave a comment