I don’t know whether to take the Michael Bloomberg independent run for president seriously or not. He could spend a billion bucks exploring the possibility, and then decide against, and in the time he was mulling he’d have about replaced the billion.
Donald Trump says he would love to run against his good friend Bloomberg, which could be classic Trumpian bravado or a true belief that Bloomberg in the race would improve Trump’s chances in November. Hillary Clinton has publicly suggested — self-servingly but perhaps accurately — that Bloomberg will not get in if he believes she will be the nominee.
Anyway, it’s interesting to game out the effect a well-financed, middle-of-the-roadish third candidate might have on the general election race. But political scientist Norm Ornstein of Minnesota (originally) and the American Enterprise Institute (more recently) was quick to point out a small matter of the U.S. Constitution that needs to be part of Team Bloomberg’s considerations.
In a Washington Post op-ed, Ornstein reminded us of what happens, under the wacky ol’ Constitution, if there’s a substantial three-way split in the presidential election and no candidate wins an outright majority in the strange college-with-no-campus Electoral College. If you didn’t read Ornstein’s piece and you haven’t thought about it for a while, prepare to be surprised.
If Bloomberg jumps in…
Suppose Bloomberg is the most successful third-party candidate since Teddy Roosevelt in 1912 (when, running as a Bull Moose Progressive Party candidate, Roosevelt managed to finish second in both the popular and electoral vote).
Leaving aside the share of the national popular vote he receives, suppose Bloomberg is able to carry some states (the last previous third-party or independent candidate to do so was George Wallace in 1968, who carried three states worth 46 electoral votes but not nearly enough to keep the Republican nominee, Richard Nixon, from amassing a sizable Electoral College majority). Bloomberg wouldn’t have to win a majority in any state; in a three-way, a plurality is enough to get all of a state’s electoral votes.
Suppose Bloomberg and the Republican nominee and the Democratic nominee each get enough electoral votes that — for the first time 1824 — no one gets an Electoral College majority. At the moment this seems only mildly plausible, but what happens if it does happen? The person who got the most electoral votes doesn’t win. The person who got the most popular votes doesn’t win. They don’t choose straws to see who will be president.
Instead (for the first time since 1824) the election would be thrown into the U.S. House of Representatives, where the outcome would be decided on a basis of one state, one vote. The newly elected House delegation of each state votes among itself and determines how that state’s single vote will be counted. Whoever gets the support of 26 states (irrespective of how big or small the states are) gets the Oval Office and the keys to Air Force One.
And how might that vote go? Writes Ornstein: “Currently, 33 states have House delegations that are majority-Republican; three are evenly split; and Democrats control 14. There are no independents — zero, nada — in the House.” Those numbers could change based on this year’s election, but it’s a stretch to think that the Repubs would control fewer than the 26 states necessary to decide the election.
A vote in the House
If you assume that every House member votes in favor of the candidate of his own party (not a terrible assumption), the Repub nominee — even if he finished third in both the popular and electoral vote — becomes president.
I suppose you could imagine, given the current dynamics, that if the Republican nominee was Donald Trump, who horrifies many establishment Repubs, or maybe even Ted Cruz, although that’s a stretch, there would be House Republicans who might stray from voting the party line. I doubt it. And it wouldn’t matter unless so many of them did so that they could tip the state and then tip enough states to knock the Repub nominee down to 25 or fewer.
Bear in mind in that scenario, under the rules, Republican House members who weren’t willing to vote for Trump or Cruz would have to vote for either the Dem nominee (presumably Hillary Clinton or Bernie Sanders, which would border on unimaginable for any House Republican) or they could vote for Bloomberg, but that would not elect Bloomberg unless it happened in 26 states.
Here’s the last possibility, truly from the ozone layer and one that Ornstein didn’t discuss in his op-ed but that I know from my long obsession with the U.S. Constitution:
Suppose some House delegations did tip to Bloomberg. Suppose 10 did. Even 20. (The actual number would likely be zero.) That wouldn’t do it. To win the presidency under this provision, you have to win a majority of all states, which would require 26. There is no provision for one of the three “finalists” to be thrown out in the interest of forcing a majority.
What would happen if the House couldn’t reach a majority outcome by Inauguration Day? This is all spelled out in the 12th Amendment to the U.S. Constitution. Simple. The newly elected vice president would serve, indefinitely, as acting president. Of course, if no one had received a majority of electoral votes for president, no one would have received a majority for vice president either.
But under the 12th Amendment, the choice of the vice president (and, under this scenario, the acting president, whose term as president would continue indefinitely until the deadlock was broken in the House) would be left to the U.S. Senate. (By the way, for future reference, that also means that we could someday have a president and vice president of different parties.)
Unlike the three-way contest in the House for president, the Senate would choose only between the vice presidential nominees on the two tickets that got the most electoral votes. And, unlike the House which votes on a one-state, one-vote basis, each of the 100 senators would get a vote on the vice presidential runoff and, potentially, the choice of the acting president.
I can’t drag this out much longer, and we’re getting into less and less likely scenarios. But the pundits expect the Dems to pick up several Senate seats this cycle, so a 50-50 Senate is not impossible. In normal times, the vice president could break the tie. But we’re looking at scenarios where there is no vice president.
The Constitution (still the 12th Amendment), in its wisdom, foresaw this possibility in which the choice of both president and vice president was deadlocked. The amendment says: “The Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
And Congress has adopted such a law, providing that in such a circumstance the speaker of the House shall serve indefinitely as acting president. Congratulation, Speaker Paul Ryan.
In case you didn’t follow the link above to Ornstein’s piece, it’s headlined: “A strong independent presidential candidate would be a nightmare.”