The electoral college, my bete noire until the ineluctable progress of humankind deposits it atop a pile of charred Ford Pintos on history's scrapheap, has one little known but ghastly provision that I almost hope forces itself onto center stage some day, since, being a ruddy optimist, I have to believe the nation's attention would be its doom. On the other hand, the 2016 result didn't do it, nor the ascendancy of George Shrub in 2000, so I'm probably fooling myself.
The provision relates to the question of what happens if no candidate for president receives a majority of electoral votes. This could happen if more than two candidates won some electoral votes, or if, in the current arrangement, which allots 538 electoral votes, two candidates divide them evenly and finish in a 269-269 tie. Neither scenario is particularly farfetched. In 1968, for example, George Wallace carried five states, with 45 electoral votes, and Nixon and Humphrey finished in a virtual popular vote tie--Nixon got 43.4% of the vote to Humphrey's 42.7%. Nixon's winning electoral vote tally of 302 was fueled by a series of very narrow wins, including in his native California, which back then had "just" 40 electoral votes. Had Humphrey prevailed in California, the electoral vote score would have been: Nixon, 262; Humphrey, 231; Wallace, 45. No winner. Nor is a 269-269 tie unimaginable. In the last election, Trump won 306 electoral votes, including those of Pennsylvania (20) and Michigan (16) by less than 1% of the statewide balloting. Had Clinton carried those states, and also Maine's second congressional district (which this year flipped from Republican to Democratic control), both candidates would have won 269 electoral votes.
What happens then? You get points for civic virtue if you know that "the House of Representatives decides"--assuming no "faithless elector" precipitates a crisis by voting for the candidate who lost within her (or his) state's borders. But the details of "the House deciding" may not be what you think. From the 12th Amendment:
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 state, 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 for a choice.
So, in the event that the electoral college does not render a verdict, "the House decides," but the delegation from Wyoming (a single representative) has as much pull as the delegation from California (53 representatives). After a 269-269 tie in 2016, the score in the House, after California and Wyoming had voted, would have been 1 to 1, and the task would have been to get to 26. In this regard, it is worth noting that in the next Congress, the one just elected this November, the Democrats will have a 235 to 200 majority, even though there will be more than 25 states with a majority of Republicans in their delegation. Therefore it's possible that a candidate for president could win the national popular vote by a few million but finish in an electoral college tie, then lose the election in the House even though a strong majority of its individual members preferred him (or her). What would be the justification? I mean, I know what the 12th Amendment says, but why is it good, desirable, just, and wise?
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