Third Party Presidential Candidacies and the Fracking Twelfth Amendment: Why Bernie Won’t Run Green

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John Quincy Adams was elected by virtue of the Twelfth Amendment in 1824 -- leading Andrew Jackson to hulk out and win the office four years later. Yes, this will be on the test.

John Quincy Adams was elected by virtue of the Twelfth Amendment in 1824 — leading Andrew Jackson to hulk out and win the office four years later. Yes, this will be on the test.

If you want to see a left-wing candidate — Bernie Sanders, to take a random example! — run for President as an independent or third-party candidate, then you had better know about how the Twelfth Amendment works.  You won’t like it.

Here’s the text of the Twelfth Amendment.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

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.[Note 1]

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.[1]

So: if no candidate gets a majority of the Electoral Vote — which is not unlikely with a strong third- or fourth-party campaign — then the House chooses from among the top three candidates with the most Electoral Votes for President which of them will be elected.  But this isn’t a normal House vote.  Each of the 50 state delegations to the U.S. House of Representatives gets one vote.

This is, if it’s not obvious, madness.  At least it’s madness from a Democratic perspective.  For Republicans, it’s one of the built-in advantages of our electoral system: “no outcome” in the Electoral College likely means that the win goes the the candidate with the best ties to small — and generally conservative — states.  (I don’t know whether the House through its delegations can only take one try at voting in a President or whether it can take multiple tries.  But as we’ll see — if the Presidential race gets thrown into the House this year, it won’t likely matter.)

Let’s start with the easiest part:  The following seven people are the only ones in their state’s U.S. House delegation:

Don Young, R-Alaska
John Carney, D-Delaware
Ryan Zinke, R-Montana
Kevin Cramer, R-North Dakota
Kristi Noem, R-South Dakota
Peter Welch, D-Vermont
Cynthia Lummis, R-Wyoming

Yes, under the Twelfth Amendment, if the election goes to the House then Cynthia Lummis of Wyoming has as much say in choosing the new President as the entire 53-person Congressional delegation of the State of California.

Trump needs 26 of the 50 state votes to win.  Assuming that everyone here votes for their party’s candidate, he starts out with a 5-2 lead.  Can he get 22 more to reach the magic 26?  Hey, remember that huge gerrymander that went into effect after the Republican-dominated 2010 elections?  Behold!

Alabama delegation: 6-1 Republican.
Arizona delegation: 5-4 Republican
Arkansas delegation: 4-0 Republican
Colorado delegation: 4-3 Republican
Florida delegation: 17-10 Republican

That’s 10 votes.

Georgia delegation: 10-4 Republican
Idaho delegation: 2-0 Republican
Indiana delegation: 7-2 Republican
Iowa delegation: 3-1 Republican
Kansas delegation: 4-0 Republican

That’s 15.

Kentucky delegation: 5-1 Republican
Louisiana delegation: 5-1 Republican
Michigan delegation: 9-5 Republican
Mississippi delegation, 3-1 Republican
Missouri delegation, 6-2 Republican

At 20.

Nebraska delegation, 2-1 Republican
Nevada delegation, 3-1 Republican
North Carolina delegation, 10-3 Republican
Ohio delegation, 12-4 Republican
Oklahoma delegation, 5-0 Republican

That’s 25.  Think that maybe Hillary or Bernie can sweep the rest?

Pennsylvania delegation, 13-4 Republican (1 vacancy)

Guess not.  Trump gets elected … probably, presuming that they can hold party lines.  This is why Mitt Romney didn’t run third party, by the way.  But hey, let’s keep counting!

South Carolina, 6-1 Republican
Tennessee delegation, 7-2 Republican
Texas delegation, 25-11 Republican
Utah delegation, 4-0 Republican

That’s 3o Republican votes.

Virginia delegation: 8-3 Republican
West Virginia delegation, 3-0 Republican
Wisconsin delegation, 5-3 Republican

That’s 33.

Democrats control, including Delaware and Vermont noted previously, 14 delegations:

California, Connecticut, Hawaii, Illinois (barely), Maryland, Massachusetts, Minnesota, New Mexico, New York, Oregon, Rhode Island, and Washington.

What about the other three?

Maine’s delegation is tied 1-1.  That means that unless they agree, Maine does not get to vote on who becomes President!

New Hanpshire’s delegation is also tied 1-1 — we could be down to 48 states!

Hey, New Jersey’s is also tied, but it’s 6-6!

So: if party discipline holds — and unless Gary Johnson or Mitt Romney or someone gets a stray electoral vote, even one from a “faithless elector,” it likely would in a race between Hillary, Trump, and Bernie (or Jill Stein, if that’s your thought) — then unless the Republican Party fractured entirely the 33-14-3 lead should be enough for Trump to pick up 26 states’ votes.  Unless, that is, the House wanted to screw him over.  If no third party candidate received an electoral vote, the only ways that the House could block Trump would be if a 269-269 Electoral Vote tie were followed by a 25-25 state delegation tie or a loss of quorum.  (That’s unlikely because if even only one member of a state’s delegation were there, they’d get to vote on behalf of that state.  Screwing Trump over would be a LOT of work.  If a third candidate got at least one electoral vote, it would be easier, and so this is where the “Colin Powell becomes President” scenarios operate.)  If that happened, the Vice-President would be elected by the Senate from among the top two (by Electoral vote) candidates for that position.  If the Senate managed not to make quorum or yield a decision, then the Speaker of the House would become President.

In other words: unless a third party gets an outright majority of the electoral votes, denying the Democrat a majority will likely just throw the election to the conservatives or Republicans.  Yes, sometimes the system IS definitely rigged — but this is part of the hangover left over from the initial slavery-protectiong compromise of equal votes in the Senate that was needed to get Southern states to ratify the Constitution.  (Figures, doesn’t it?)  That’s why the only candidates who have made throwing the election into the House a deliberate strategy — Strom Thurmond in 1948, George Wallace in 1968, and Ross Perot in 1992 — have been conservatives.  (One exception: George Wallace keeping Richard Nixon from getting a majority of electoral votes and thus throwing the election into the deeply Democrat-dominated House of Representatives was Democratic nominee George McGovern’s plan in 1072 — but then Wallace got shot and crippled in Maryland and that was the end of that.  We no longer have the deeply Democratic Congress that would have made this possible.)

Bernie Sanders knows all of this, and that’s why he’s not going to run as a Green or Independent.  He’d not only have to “make the runoff” in the House — he’d have to win outright.  And that is a much harder task.  Sorry to have to be the one to say it.


About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)