Independent-minded Republicans failed to dethrone Trump in Cleveland. Many Democrats in Philadelphia only grudgingly reconciled themselves to Clinton. Is there any way to save the country from the evil-of-two-lessers choice between Donald and Hillary?
Yes, but to explain how we have to dust off the hoary old Twelfth Amendment. Ratified in 1804, the Twelfth Amendment frames the actual process for electing the President—not by popular whim in a national plebiscite but by vote of an Electoral College and, if necessary, by action of Congress.
Not only is it possible for the Electoral College to upend the binary choice of Hillary versus Donald but, under current circumstances and given the right alternative candidate, it’s almost likely. Arguably, the Electoral College was conceived for just the kind of national leadership crisis we now face.
So how does this work?
Remember first the standard arithmetic of the Electoral College. As everybody learned in civics class, or used to learn, Presidents are elected by a majority of electoral votes. The 538 Electors match the sum of U.S. Senators and U.S. Representatives (plus 3 for the District of Columbia). Interestingly, the Electoral College is truly a citzens’ body: there are no “superdelegates” in it, because the Constitution excludes anyone who is a federal official or employee.
It doesn’t matter if a candidate wins the national popular vote; what matters is translating that into an Electoral College majority of 270 or more votes. When Bill Clinton won the presidency in 1992, he received only 43% of the popular vote, but clinched 370 electoral votes because he racked up pluralities in the right combination of states. George H.W. Bush garnered 38% of the popular vote that year resulting in 168 electoral votes because he won 18 states with less total clout in the Electoral College. Ross Perot earned 19% of the popular vote but no electoral votes because he didn’t manage a plurality in any single state.
Electoral College arithmetic magnifies pluralities into majorities. But it also introduces some unusual possibilities into a highly divided political situation, especially when divisions are geographically concentrated. The current tinderbox of division makes it far more likely for the Electoral College to play an outsized role. Large segments of each major party are dissatisfied or even disgusted with their nominees, and millions of voters wonder if either nominee is up to the job.
If the right independent candidate stepped forward immediately after the anguished coronations in Cleveland and Philadelphia, it might well be possible for the Electoral College to upend the election of both Trump and Hillary.
Who would the right candidate(s) be? To put it simply: an independent team capable of winning a plurality of votes against Hillary and Trump in, say, Ohio, Virginia, and Utah.
This sounds too easy, but I’m serious. Let me walk through a hypothetical scenario.
The Cleveland convention is over, the Democrats are done in Philadelphia. Ohio Governor John Kasich, a Republican, and former Virginia Senator Jim Webb, a Democrat, announce an independent bipartisan candidacy. (Maybe they could announce on the day of Hillary’s formal acceptance, to steal some thunder.)
This is not quixotic, because they do not need to win a majority of the popular vote (obviously), and they do not even need to win a majority in the Electoral College. They only need to win a plurality in a small handful of states—battleground states with moderate sentiment where dissatisfaction with Trump and Hillary is high.
Let’s concede to Hillary states where the Democrats have a lock, and throw into this group Pennsylvania, Michigan, Iowa and Colorado—where she will likely edge out her rival. Give Donald the bulk of the traditionally Republican-leaning states, then ask, “Could he edge out Hillary in New Hampshire, North Carolina and Florida?” It’s possible—especially if my independent team did not appear on the ballots there.
That puts the tally at 262 electoral votes for Clinton and 239 for Trump. Neither wins a majority because of the other 37 votes—Ohio, Utah, and Virginia, won by my hypothetical independent team. They win a plurality in Ohio because of the remarkable popularity of Ohio governor John Kasich, who already beat Trump in the primary there. They win a plurality in Virginia because Virginia’s voters have a moderate bent, and because they know former Senator Jim Webb, a decorated combat Marine who also served as Secretary of the Navy. They win a plurality in Utah because though Utah always tilts Republican, the state’s Republican voters are more dissatisfied with Trump than Republicans in any other state and already rejected him in the primaries. Of course Kasich/Webb might win a plurality in a few more states, too, if they tried, like moderate Iowa, Colorado and Nevada.
In this scenario nobody has a majority in the Electoral College. But unlike at the earlier stages, a mere plurality is not enough. The Twelfth Amendment specifies that in a case like this, the final decision shifts from the Electoral College to the Congress. The House of Representatives must then elect the new President, from among the top three Electoral College vote-getters for President; the Senate elects the new Vice President. In the House, each of the 50 states gets one vote for this purpose. The presidential winner in the House must receive a majority, 26 votes. The vice presidential winner must garner a majority of Senators, 51 votes.
You may ask, Which Congress does this voting? The answer is: the one whose members’ terms begin on January 3, 2017; in other words, the new House and Senate.
Unless there is a sea-change in the composition of House, there is likely to be a Republican advantage once the election becomes the job of the Congress. Among other things, the effect of the voting system is to reduce the relative influence of high population states like California and New York—which happen to tilt Democratic in our era (but of course tilted Republican in earlier eras).
If Trump’s candidacy continues to seem toxic, it is not hard to imagine most Republican Congressmen—and more than a handful of Democratic ones—turning to the independent bipartisan team of Kasich and Webb in a moment of national crisis, instead of to the tainted and negatively charged alternatives.
In other words, all John Kasich might have to do to potentially prevent the election of Trump or Clinton would be to earn a plurality of the vote in a small handful states—or even just in three. If Kasich campaigned tirelessly in those three states, and explained to voters that it was their opportunity to save the union, could he win a plurality in Ohio, Virginia and Utah? You bet he could. Especially if he chose a Democratic running mate so that the ticket embodied an old-fashioned bi-partisan spirit—the kind of spirit that got America through times of crisis in the past—the kind of spirit that voters were yearning for when they voted for Barack Obama but were terribly disappointed. Kasich/Webb would be the real thing, and it would have incredible appeal, especially as our sense of national crisis mounts over the next six months due to the character defects of the party front-runners and the mounting threats to stability abroad and civil peace at home.
That’s the hypothetical scenario. And it isn’t about salving the consciences of anti-Trump conservatives. It’s about winning the presidency—winning it fair and square according to the constitutional rules of the game (Article II, §3, Twelfth Amendment, Twentieth Amendment).
If you’re following me so far, let me now add an additional wild card that makes my hypothetical scenario really interesting and even more favorable to an independent slate. The wild card is that the Constitution does not require all the Electors to vote for the popular vote winners in their respective states. Instead, many of them will actually be free agents.
By modern custom, the Electors are bound to cast their votes for the winner in their states. Some states reinforce that custom by state law, as the Constitution permits (but does not require). Of the 538 voters in the Electoral College, 309 (29 states plus D.C.) are bound to their states’ winners. That leaves 229 Electoral College voters (21 states) who are actually free to choose other candidates. (Actually, it’s hard to nail down specifics on four of the apparently “bound Electors” states, and their Electors may turn out to be unbound after all.) If you’re paying attention to the details here, you will find it interesting to know that Ohio, Virginia and possibly Utah all bind their Electors.
Some of the 229 (or more) free Electors will be from states that are almost certainly tied down tightly by party discipline, even without state law. For example, New York’s delegates are free, but they’re going to vote for Hillary; same for New Jersey, Rhode Island and Illinois. And of the other non-bound Electors, the ones from Arkansas are almost certainly going to vote for Trump. But that still leaves at least 136 Electors free to use their best judgment, independent of the popular vote in their states. This includes all the Electors from Texas, the second largest contingent after California (which legally binds its Electors). In other words, the number is large enough to make a big difference in a closely divided vote. Would such Electors risk umbrage if they exercised their freedom? Probably, but in a crisis year some of them might well feel that the common good is worth a little umbrage.
Would this be “unfair”? As the folks over at FairVote.org put it huffily regarding the 229 unbound Electors, “despite the outcome of a state’s popular vote, the state’s Electors are ultimately free to vote in whatever manner they please, including an abstention, with no legal repercussions.”
Memo from the Founders: this is not a glitch, it’s a feature.
The forgotten truth is that the Framers (and later amenders) established the Electoral College precisely because they did not want the president chosen simply by an act of majority will. Like the Senate, the Electoral College was intended to be composed of people of good judgment, well known in their respective states, who would use their best judgment to select the chief executive. The designers of the Constitution did not share the contemporary prejudice in favor of simple majoritarian democracy. They wanted popular sentiment to be baffled, filtered and refined—in this case by semi-independent Electors in the Electoral College—lest the people fall for demagogues. The Electors were conceived as delegates not conduits.
How could Electors—I mean the ones who are not legally bound—be faulted for fulfilling the function and duty envisioned for them in the Constitution?
The freedom of unbound Electors resolves one hiccup that I did not mention in my hypothetical scenario above. According to the Twelfth Amendment, when the selection of Vice President moves from the deadlocked Electoral College into the Senate, the Senators must choose one of the top two vote-getters (whereas the House chooses the President from among the top three). So ideally, once the course of events became clear, the unbound Electors would vote for Jim Webb in sufficient numbers for Vice President so that the Senate could choose him. Otherwise the second-highest vote-getter for V.P. might be Hillary’s ticket-mate Tim Kaine or Trump’s, Mike Pence. Neither of them might be a bad choice, though Webb would be more logical. (And now the only ticket that could keep Virginia from Clinton would be a bipartisan one with Webb on it.)
The pathway I’ve sketched out here is unusual, but not far-fetched. And it is perfectly constitutional.
At worst, an independent bipartisan run by Kasich and Webb would enhance the national reputation of these two men as they steal the show in the televised debates, even if they didn’t make it to the White House. And at best, their candidacy could trigger the Founders’ mechanism for selecting a good president in bad times – and give us all a national civics lesson.
Graham Walker is a constitutional scholar in California, and serves as Senior Research Scholar at The Witherspoon Institute in Princeton.