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.
That’s from the Twelfth Amendment to the United States Constitution, a part of the process that will occur this November when we elect — or attempt to elect — the next President. Despite their flaws (both our candidates have them, as part and parcel of being living, breathing human beings), I believe either Clinton or Sanders could defeat any of the Republican contenders in a traditional election. As I detailed in a comment that won’t get much attention, and am examining in more detail here, this may not be a traditional election. But first, some history:
The election of 1800 was a mess, making clear the flaws in the original version of the electoral college, and hastily spawning the Twelfth Amendment and the EV system we know and love (or not) today. But few people realize what happens if a candidate fails to reach the majority benchmark (270, today). It seems bizarre that the House of Representatives could vote, state-wise, for the President, without any regard for the popular vote whatsoever. But, in fact, not only is it Constitutionally permissible, it actually happened once, and attempts were made to force that outcome twice more.
Prior to 1836, there were no primaries as we understand them today, and parties often nominated multiple candidates for the Presidency. Let’s be glad that changed! In the 1824 election, four candidates, all members of the Democratic-Republican Party, received votes in the electoral college. Andrew Jackson led the popular vote and the plurality of EV, with 99. John Quincy Adams won 84. William H. Crawford, 31. And Henry Clay, 37. Because no candidate had a majority (131), the election was decided by the House between Jackson, Adams, and Crawford. Clay was not under consideration by the House because he finished out of the top three. But he endorsed Adams over intra-party political opponent Jackson (Crawford suffered a stroke near the end of election season and was not generally considered a viable choice). Accordingly, on its first ballot, the House elected Adams by a vote of 13 states to Jackson’s 7 (and Crawford’s 4). The House had chosen the new President. But the 19th century was a weird time, and surely, that couldn’t happen again…
In 1948, it nearly did. The Democratic Party was deeply fragmented, with both the left wing (as the Progressive Party) and the right wing (as the States’ Rights Democratic Party, better known as the Dixiecrats) spalling off third-party runs. The latter was far more successful, running a prototype Southern Strategy in support of candidate Strom Thurmond. Thurmond wasn’t even on the ballot in most states; it was impossible for him to win the electoral college outright. The goal was to deny either party the majority of EV, and force the election to the House. The attempt failed, but not by a particularly wide margin. 266 EV were needed for a majority; Truman won with 303 over Dewey’s 189 and Thurmond’s 39. Truman won Ohio with a margin of only 0.24%, and California by only 0.44%. Had those two states gone to Dewey instead, Truman would have been denied the EV majority and the election would have gone to the House.
A similar situation happened in 1968, when the pro-segregation American Independent Party led by George Wallace carried the Deep South. Again, Wallace could not possibly have won the election outright, but attempted to deny an EV majority to the other two candidates. 270 EV were needed to win, and Nixon received 301 versus Hubert Humphrey’s 191 and Wallace’s 46. Nixon won his states with a wider margin that Truman had in 1948, and it’s more difficult to imagine a situation where this play would have succeeded in 1968.
But enough history. Could it happen now?
In my opinion, there are three scenarios where an independent run by a regional candidate at least raises the risk of a contested election.
First, Michael Bloomberg has stated that he’ll decide whether to launch an independent campaign “the first week of March”. That timing is likely not random; Super Tuesday is March 1. Bloomberg isn’t a strict match for either political party. He’s a social progressive — pro-choice, pro-gay rights, pro-gun control. But he’s also a billionaire corporatist candidate, supporting free trade agreements and strict limits on union power. Not coincidentally, he’s been both a Democrat and a Republican during his political career. I think a Bloomberg run is most likely if the results of Nevada, South Carolina, and Super Tuesday make a Sanders candidacy look likely; Bloomberg is an unalloyed ally of Wall Street interests threatened by a Sanders Presidency. In the most concerning scenario, the Republican primary goes to a brokered convention (which is, frankly, mathematically probable at this point). Trump is forced out by the party apparatus, and the convention anoints an establishment candidate: Bush, Kasich, or Rubio. Bloomberg runs staunchly to the left, on his liberal social policy issues, while serving as an outlet for Democratic Party voters who are nervous about electing a socialist (and in the face of Republican ads hammering that affiliation), siphoning off some of the wealthy white vote (from the northeast and northwest) as well as disaffected Clinton supporters willing to vote PUMA. From an EV calculus perspective, Bush might carry Florida (or Kasich, Ohio); a Bloomberg campaign focused in the northeast and Atlantic Coast states might deny 270 to any candidate.
Alternatively, a Clinton win the Democratic Primary followed by a brokered Republican convention could also present problems. In this scenario, the Republican Party also forwards a Chosen Son. Trump, declaring that he’s been “treated unfairly”, runs as an independent populist, and siphons votes from Democrats unwilling to “hold their nose” for Clinton or who are willing to overlook his racist demagoguery in favor of the commonality of a populist outsider campaign. It’s difficult for me to predict regional support for Trump under these conditions; unexpected states may be in play.
Of course, it’s possible to combine these scenarios for total electoral chaos. A four-way race between either Democratic contender, a Republican establishment candidate, Bloomberg (running on the center-left), and Trump (running on the Trump) would be unprecedented in American politics. It is entirely possible to imagine regional campaigns by Bloomberg and Trump successfully cherry-picking battleground states sufficient to deny either main-party candidate the 270 threshold.
And if no one gets 270, the (actual, non-Trump) Republican, who can reasonably be expected to come in second, and certainly would be no worse than third, will be elected by the ultra-partisan House, the popular vote be damned. Far-fetched? Ask yourself how badly the Republicans and their moneyed interests want to keep hold on the chains of power. This is a legal way to “steal” the election, one that has even been attempted before. The hard right nature of the current House simply makes the outcome a sweeter prize for the Republicans.
How do we stop this? By maintaining strong party unity. The Blue Wall of states makes outright Democratic victory in November reasonably likely, so long as we do not permit the party to fragment regardless of which candidate wins the nomination. If this does become more than a two-way race, losing Clinton voters to Bloomberg or Sanders voters to Trump is not a vote of conscience; it’s a path to permit the Republican to pull the rug out from under us, at a time when more could not possibly be at stake.