The death last week of a Minnesota congressional candidate may propel the state into a pivotal role in the election of the president.
The decedent is Adam Weeks, the long-shot nominee in the Second Congressional District of the Legalize Marijuana Now Party, which is deemed a “major” party because it accumulated 5% of the ballots in a recent election cycle.
Because of his death, under an unusual Minnesota law, the seat, currently held by Democrat Angie Craig, becomes vacant at the end of her term on Jan. 3. It will remain idle until filled by a special election on Feb. 9, three weeks after Inauguration Day.
That vacancy could be a major factor in the selection of the person who takes the oath of office on Jan. 20.
Many of the unprecedented doomsday forecasts for the presidential election are outside the purview of the Constitution and probably unimaginable to the Founders. But one scenario that has been largely overlooked is prescribed in the Constitution and has been used previously.
It’s the possibility that the election could be decided by the House of Representatives in a bizarre way in which the smallest states would outrank the largest ones — and Minnesota may play a key role.
That brouhaha could come about if neither of the two major candidates gets a majority, at least 270, of the 538 potential electoral votes. That could occur due to long-drawn-out ballot counting, especially of absentee/mail-in votes, even more prolonged litigation — both distinct possibilities — or a 269-269 Trump-Biden tie vote, which is highly unlikely (but in this year anything seems imaginable).
The electoral votes of all states are to be submitted on Dec. 14. Then, they are to be tabulated and announced at a session of the newly sworn-in Congress on Jan. 3. The next (or same) president is to be inaugurated at noon on Jan. 20.
Sounds pretty simple, a term that applies to very little these days. But it may not be. If a majority of electoral votes is not obtained by those due dates, particularly the latter in early January, there would be no president to be inaugurated.
The Constitution provides a solution. Under Article II, section 1, the choice is left to the House of Representatives. It presumably would want to decide before noon on Inauguration Day. If not, then the speaker of the House — presumably Nancy Pelosi, if the Democrats retain control of that chamber, as seems highly likely — would ascend at least temporarily to the Oval Office.
Back to basics
In the House, the Constitution provides that “the Votes shall be taken by States … each State having one Vote.” This means that each state casts one vote based on the majority decision of its members and the first candidate to 26 wins, maybe.
This procedure actually has been utilized twice before, both involving a member of the founding Adams family. In 1800, Thomas Jefferson was elected this way, ousting incumbent John Adams. The House election went on for 36 ballots. In that brouhaha, Alexander Hamilton managed to sway votes away from his rival, Aaron Burr, who had tied Jefferson for electoral votes, to Jefferson to put him over the top and into the White House.
Adams’ son, John Quincy, went through a similar House election 24 years later but came out on top in a battle not without its own controversy. His opponent, Andrew Jackson, received more popular and electoral votes but due to multiple candidates, not a majority, thrusting the decision to the House, again. Adams squeaked into office due to Henry Clay tossing his support to him, which yielded a position of secretary of state for Clay and a slogan of a “corrupt bargain” that motivated Jackson to run again in 1828 — this time defeating Adams decisively in both the popular vote and electoral count.
If the election this year is tossed into the House, there are other weird ways the presidency could be decided.
It’s unlikely the District of Columbia, which has three presidential electoral votes, would participate because it has no elected membership in Congress. Thus, those voters would be disenfranchised altogether in the process. But more troublesome, the House voters need not follow the popular vote or even the electoral vote in their state; they are free to vote for any candidate they want. Indeed, they are so untethered that it has been suggested that they could vote for anyone at all. But the text of the provision indicates that it must be one who gathers at least a single electoral vote in any state.
Minnesota & more
But the main sticking point of a presidential election in the House of Representatives is the state-unit vote requirement with each state voting the way a majority of its members decide.
As currently composed, on a state-by-state basis Republicans hold a slight majority in the House. Although outnumbered in totality, Republicans have a majority of House members in 26 states, including those seven small single-member states, while Democrats are on top in 23 and one, Michigan, is tied 7-7.
But that could change, one way or the other, this November.
That’s where Minnesota fits in. The congressional delegation is five Democrats, including Craig, and three Republicans. The incumbents seem to be favored to win in nearly all of them, although upsets are possible in a couple of them.
The Seventh District in northwest Minnesota, currently occupied by conservative Democrat Colin Peterson, is definitely in play. His constituents went for Trump by 31% in 2016, and the GOP is fielding a strong candidate, former Lt. Gov. Michele Fischbach, who has a sizable lead in polling and quite reasonable chance of defeating the 14-term incumbent.
If so, and all other incumbents prevail — no sure thing, mind you — the delegation would have a 4-4 partisan split, making an impasse possible, indeed likely, if the House is to choose the president. But without Craig there, the breakdown could be 4-3 for one party or the other. If so, the Seventh District race could be determinative whether the state’s delegation would vote for Trump or Joe Biden.
But Minnesota’s contribution to the prospective electoral mess in the House is paled by another consideration. Because each state has one vote, the Congress members from small states and their constituents will have hugely disproportionate impacts on the outcome, even more so than in the grievously distorted Electoral College.
In a House election, California would get one vote for some 40 million residents; so would Wyoming with 600,000 people. To make matters worse, the four largest states, California, Texas, New York, and Florida, — comprising blue, red, and swing jurisdictions — contain more than one-third of the nation’s population, but would cast only 4 of 50 votes, 8% of the total. That’s the same proportion of the four smallest states—Wyoming, Vermont, Alaska, and North Dakota, which have a total of about 2.2 million people, barely 2% of the four biggest states.
And you thought the Electoral College was unfair.
A Republican advantage
But there’s more. Since each state gets a single vote from its congressional delegation, the Republicans have a huge, perhaps insurmountable advantage. Although they now hold a minority position and probably will after the election, a majority of states have more GOP representatives than Democrats, including those with single members. That makes it highly likely that, in the event of a House election, the bulk of states would tilt toward the right, notwithstanding the GOP’s minority status in that body.
The Democrats, however, are not bereft of tools and tricks of their own. Under the Constitution, the House election cannot proceed unless there is a quorum consisting of “Members from two-thirds of the states.” A walkout by 13 states could deprive the House of a quorum and paralyze it from proceeding. But that, too, is unlikely because there will not be 13 states composed solely of Democrats. This strategy, thus, would not work unless their walkout were joined by all of their Republican colleagues. However, the prospect of a walkout could give them some leverage to try to negotiate a more favorable outcome or other post-election concessions.
But absent that device, tossing the election into the House may virtually assure re-election of President Trump or, perhaps, his replacement by another GOP favorite.
Marshall H. Tanick is a Twin Cities constitutional attorney and historian with the law firm of Meyer Njus Tanick.
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