The Hail Mary of an Election Decided By The House

It’s only happened two times in the history of our republic.

First, in 1801 the House of Representatives chose Thomas Jefferson over Aaron Burr to break a 73-to-73 electoral vote deadlock. Second, fittingly with the populist plain-speaker of his day, Andrew Jackson in a four-man race against John Quincy Adams, William Crawford, and Speaker of the House Henry Clay (who was widely hated). The House chose Adams, who had 14 less electoral votes than Jackson.

Every election cycle, some in the media and pundit class fantasize about a deadlock, or an election where nobody wins an outright majority of electoral votes. In 1980, The Atlantic succumbed to this brand of fantasy with Ronald Reagan and Jimmy Carter, with Walter Mondale named Acting President by the Senate. “This scene is not idle fantasy,” liberal legal scholar Laurence Tribe and Thomas Rollins intoned with gravitas. (Carter lost in a humiliating landslide, winning only 6 states and 49 electoral votes to Reagan’s 489.)

But Tribe and Rollins were right about the mechanics, and this particular election, the candidates are both just awful enough to go back to the well one more time for the Hail Mary of all elections. Could Evan McMullin throw the race into the House?

Benjamin Morris at FiveThirtyEight seems to think there’s a better than zero chance. McMullin is doing very well in Utah, which makes sense since he’s a Mormon. If Mitt Romney, whose Mormon blood runs GOP red and has so far resisted all attempts to get him to turn on his party (although he very publicly despises Trump with the heat of a thousand supernovae), formally endorsed McMullin, it may give the independent enough oomph to take the state and its six electoral votes.

Then it gets hairy. Trump has to win Ohio, North Carolina, New Hampshire, and split Maine to have a chance at stopping Clinton short of 270.


Click the map to create your own at 270toWin.com

So, then what? We go back to Tribe and Rollins “nobody wins” scenario. We end up with the House trying to decide between Clinton, Trump and McMullin, while the Senate chooses Mike Pence or Tim Kaine to serve as Acting President should the House take too long.

And note that the 20th Amendment specifies that the incoming Congress, not the outgoing, decides the results. This means it’s more likely Kaine will end up selected by the Senate. It also means some Republicans might be persuadable to Clinton’s side (or McMullin’s) versus throwing themselves at Trump’s feet.

If the election is thrown into the House, it’s very likely that Trump will lose, even with a Republican majority. How’s that for party solidarity?

It also somewhat validates Trump’s claim that the election is rigged. It was rigged by our founders to keep despotic ignoramuses like himself out. It was further rigged in 1803 when Congress passed the 12th Amendment (effective when New Hampshire ratified it on June 15, 1804–those New Hampshirites tend to do that a lot). It was even further rigged in 1932 when Congress set forth the inauguration date as January 20th. It’s all rigged.

Congress is the ultimate backstop for deciding who governs this citizen-sovereign country. That’s as it should be.

The best solution here is to keep both Clinton and Trump out. If that means McMullin, a relative nobody, with a great resume (BYU graduate, CIA, counterterrorism, Goldman Sachs, senior advisor on the Hill, chief policy director for the House Republican Conference) ends up in the Oval Office, that’s the best possible outcome.

It’s also a Hail Mary. But McMullin is an authorized write-in here in Georgia, and his votes will be tabulated statewide. I, for one, will be voting for him, along with some of my former hold-your-nose Trump supporters whose backs were finally broken by Trump’s vile character.

When Trump was headed for the nomination, I declared that he should lose in the most embarrassing landslide since Jimmy Carter.

Were Trump to lose all 50 states–a landslide of such profound proportions that the question of blame becomes moot–the overwhelming rejection would shock the Republican Party to its foundations. Many consultants would lose their jobs immediately. Quislings and profiteers would shake in their boots. The talk would be practically never-ending as each shard of the broken GOP is carefully examined.

In short, none of the Trump boosters would get away with blaming anyone but themselves. The message to those who participated in the putsch: Repent or be exiled. The Samson Contingency goes beyond simple “I’ll stay home” #NeverTrump-ism. It’s a call to actively destroy the pillars and collapse the temple on top of us, while trying to preserve what remains.

Better than this is putting McMullin in office through a House-decided election. There are 21 days until Election Day. There’s still time to make it happen. It’s a much better outcome than letting Hillary win, which is almost a conceded point right now.

Vote for McMullin and let democracy (small “d”) do its thing.

About the author

Steve Berman

The old Steve cared about money, prestige, and power. Then Christ found me. All at once things changed. But the Holy Spirit produces this kind of fruit in our lives: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control. There is no law against these things!

I spent 30 years in business. Now I write and edit. But mostly I love. I have a wife and 2 kids and a dog and we live in a little house in central Georgia.

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