To anyone on the outside looking in, it might appear as though the presidential nominees are all but decided. But the party conventions in July could make things far more complicated: What would happen if Donald Trump were rejected by the Republicans and ran as an independent? What role might Congress play in the November election? What would happen if the decision went to the Supreme Court and there were a legal deadlock?
Political commentators are speculating about a contested Republican convention between Trump and a Republican establishment favourite like John Kasich, the Governor of Ohio, or even Senator Ted Cruz of Texas, a more doctrinaire conservative than the relatively unpredictable Trump. All sorts of procedural gambits could be deployed at the convention in a pitched battle to determine the party’s nominee.
If Trump were to lose at a free-for-all Republican convention, that could lead him to abandon the Republican Party and mount an independent Presidential campaign running against the Republican and Democratic nominees. (If Trump were to win the Republican nomination, then he too could also in theory face an independent challenge, but the momentum of his campaign would make such a challenge unlikely.)
Registration deadlines and “sore loser” laws—which bar candidates who lose a state primary election from appearing on some state ballots as an independent Presidential candidate—would hinder Trump in running as an independent. But if he chose to run as an independent, he could still appear on enough state ballots to make a real impact on the November presidential vote, if only to spite the Republican Party elites that denied him the nomination.
A three-way Presidential election in November between Hillary Clinton as the Democratic candidate, a Republican nominee, and Trump as an independent, would divvy up the electorate in unexpected ways. Election night could bring Americans a multi-coloured electoral map, with Trump winning states in the Rust Belt and South, the Republican nominee hanging on in Republican states where Trump isn’t on the ballot, and Clinton victorious on the liberal and densely populated coasts.
If no Presidential candidate were to achieve a 270 electoral-vote majority, the byzantine procedures of the Twelfth Amendment would kick in. In this eventuality, the three candidates with the highest number of electoral votes would go before the House of Representatives, which would decide who should become the next President, casting one vote per state. The current House is dominated by Republicans, and most observers expect the Republicans to retain that majority.
But the Congressional fight would be intense and prolonged. If the House could not agree upon a President before Inauguration Day next 20th January, an even more obscure provision of the Constitution would come into effect. Section Three of the Twentieth Amendment, ratified in 1933, provides that if a President has not been selected in time, then the Vice-President-elect becomes “acting” President until the election is resolved. But the procedures for selecting a Vice-President in these circumstances, which are also set out in the Twelfth Amendment, are just as vexing as those for selecting a President. The top two vote-getters in the Electoral College, not the top three, would be referred to the Senate, and their Vice-Presidential running partner would be elected by simple majority. In a three-way race, one of the three candidates’ running mates would be excluded from consideration—and of the two put forward, one would go on to become acting President. The process of making such decisions would be politically incendiary.
Would the Supreme Court be willing to step in, as it did in Bush v Gore? Or, given that case’s nearly unparalleled and well-justified infamy, would the Court be hesitant to wade back into the mire of Bush v Gore redux?
Many find it hard to imagine the current Supreme Court intervening. But then nobody predicted the Court’s intervention in 2000 either. It was the late Justice Antonin Scalia who led the Court’s entry, by a 5-4 vote, into the arena of electoral politics to halt the Florida recount when Gore seemed to be gaining on Bush. Bush was certified the winner by a mere 537 votes out of nearly 6m votes cast.
None of this has left a pleasant taste in the mouths of observers of the Supreme Court, who suppose that most of the remaining eight Justices might be persuaded this time around that ballot-counting is a matter best left to the political process. But if one state’s electoral votes were to spell the difference between reaching 270 and instigating the madness of a Twelfth-Amendment legislative election, the scary prospect of the latter could prompt an otherwise timid and chastened Court to leap into the political thicket.
If the current Supreme Court were to hear a presidential election recount case, there would be one huge wrinkle that wasn’t present in Bush v Gore: the potential for a 4-4 judicial deadlock. Since Justice Scalia’s death in February, the Supreme Court has had one vacant position—and an even number of presiding Justices. President Barack Obama has little chance of filling the ninth spot before the November election because of Senate Republicans’ announced determination not to consider any Supreme Court nominee until a new President is in place. And there’s the rub: the US wouldn’t have a new President in such a scenario, given the Court’s 4-4 split, and the court would not have a new Justice until the new President were chosen. This scenario underscores the urgent need for the Senate to confirm a well-qualified nominee to the Supreme Court, and the immense problems that could arise from its unwillingness to do so.
In this chaotic election, the US simply cannot risk the possibility that a dysfunctional Congress and Court will fail to resolve electoral uncertainty and will deprive the planet’s most powerful nation of an effective, democratically-elected chief executive in a dangerous and uncertain world.
A three horse race?
Suppose that Trump continues to rack up delegates in the Republican primaries but resistance to his candidacy is growing in the party’s barely surviving establishment. At the Republican convention—to be held 18-21st July in Cleveland, Ohio, to choose that party’s presidential nominee—not all state delegates are obliged by the rules to vote for the candidate who won their state’s primary. Moreover, the selection of those delegates is also an internal party matter—and many in the Republican Party are wary of Trump. Thus, Trump could win the largest number of votes in the Republican primary process, but still not obtain the party’s nomination to run for President.Political commentators are speculating about a contested Republican convention between Trump and a Republican establishment favourite like John Kasich, the Governor of Ohio, or even Senator Ted Cruz of Texas, a more doctrinaire conservative than the relatively unpredictable Trump. All sorts of procedural gambits could be deployed at the convention in a pitched battle to determine the party’s nominee.
If Trump were to lose at a free-for-all Republican convention, that could lead him to abandon the Republican Party and mount an independent Presidential campaign running against the Republican and Democratic nominees. (If Trump were to win the Republican nomination, then he too could also in theory face an independent challenge, but the momentum of his campaign would make such a challenge unlikely.)
Registration deadlines and “sore loser” laws—which bar candidates who lose a state primary election from appearing on some state ballots as an independent Presidential candidate—would hinder Trump in running as an independent. But if he chose to run as an independent, he could still appear on enough state ballots to make a real impact on the November presidential vote, if only to spite the Republican Party elites that denied him the nomination.
A three-way Presidential election in November between Hillary Clinton as the Democratic candidate, a Republican nominee, and Trump as an independent, would divvy up the electorate in unexpected ways. Election night could bring Americans a multi-coloured electoral map, with Trump winning states in the Rust Belt and South, the Republican nominee hanging on in Republican states where Trump isn’t on the ballot, and Clinton victorious on the liberal and densely populated coasts.
The role of congress
The role of Congress Election to the US presidency requires an absolute majority of 270 votes of the total of 538 in the so-called “Electoral College.” Under this system, the electorate does not directly elect the President, but votes for “Electors,” intermediaries who then vote for the President on their behalf. There are dozens of scenarios in which even an electoral contest between just two candidates could result in a tie of 269 votes for each. But an independent Trump candidacy would greatly increase the odds that no candidate would win a majority of electoral votes. In any such case, the United States Constitution would play a surprisingly complex role in the ensuing Presidential election.If no Presidential candidate were to achieve a 270 electoral-vote majority, the byzantine procedures of the Twelfth Amendment would kick in. In this eventuality, the three candidates with the highest number of electoral votes would go before the House of Representatives, which would decide who should become the next President, casting one vote per state. The current House is dominated by Republicans, and most observers expect the Republicans to retain that majority.
But the Congressional fight would be intense and prolonged. If the House could not agree upon a President before Inauguration Day next 20th January, an even more obscure provision of the Constitution would come into effect. Section Three of the Twentieth Amendment, ratified in 1933, provides that if a President has not been selected in time, then the Vice-President-elect becomes “acting” President until the election is resolved. But the procedures for selecting a Vice-President in these circumstances, which are also set out in the Twelfth Amendment, are just as vexing as those for selecting a President. The top two vote-getters in the Electoral College, not the top three, would be referred to the Senate, and their Vice-Presidential running partner would be elected by simple majority. In a three-way race, one of the three candidates’ running mates would be excluded from consideration—and of the two put forward, one would go on to become acting President. The process of making such decisions would be politically incendiary.
Legal deadlock
Legal deadlock If the potential of triggering the Twelfth Amendment’s procedures weren’t enough cause for alarm, consider another bit of constitutional chaos that a tight race could create. The outcome could come down to a close vote in a single state, as happened in Florida in 2000. As the American public learned in that election fight between Al Gore and George W Bush, close votes mean recounts—and, where those recounts get ugly, they mean the possibility of judicial intervention.Would the Supreme Court be willing to step in, as it did in Bush v Gore? Or, given that case’s nearly unparalleled and well-justified infamy, would the Court be hesitant to wade back into the mire of Bush v Gore redux?
Many find it hard to imagine the current Supreme Court intervening. But then nobody predicted the Court’s intervention in 2000 either. It was the late Justice Antonin Scalia who led the Court’s entry, by a 5-4 vote, into the arena of electoral politics to halt the Florida recount when Gore seemed to be gaining on Bush. Bush was certified the winner by a mere 537 votes out of nearly 6m votes cast.
None of this has left a pleasant taste in the mouths of observers of the Supreme Court, who suppose that most of the remaining eight Justices might be persuaded this time around that ballot-counting is a matter best left to the political process. But if one state’s electoral votes were to spell the difference between reaching 270 and instigating the madness of a Twelfth-Amendment legislative election, the scary prospect of the latter could prompt an otherwise timid and chastened Court to leap into the political thicket.
If the current Supreme Court were to hear a presidential election recount case, there would be one huge wrinkle that wasn’t present in Bush v Gore: the potential for a 4-4 judicial deadlock. Since Justice Scalia’s death in February, the Supreme Court has had one vacant position—and an even number of presiding Justices. President Barack Obama has little chance of filling the ninth spot before the November election because of Senate Republicans’ announced determination not to consider any Supreme Court nominee until a new President is in place. And there’s the rub: the US wouldn’t have a new President in such a scenario, given the Court’s 4-4 split, and the court would not have a new Justice until the new President were chosen. This scenario underscores the urgent need for the Senate to confirm a well-qualified nominee to the Supreme Court, and the immense problems that could arise from its unwillingness to do so.
In this chaotic election, the US simply cannot risk the possibility that a dysfunctional Congress and Court will fail to resolve electoral uncertainty and will deprive the planet’s most powerful nation of an effective, democratically-elected chief executive in a dangerous and uncertain world.
