Michael Bloomberg could make the election really wacky

REUTERS/Stephane Mahe
Michael 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.

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.

Another scenario

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.”

Comments (18)

  1. Submitted by Paul Udstrand on 01/26/2016 - 09:25 am.

    Maybe

    On the other hand voters could well respond to yet another white billionaire guy trying to buy his way into the White House with a collective: “Meh”. Have any of these former NY Mayors ever gotten any real traction in a bid for the WH?

  2. Submitted by RB Holbrook on 01/26/2016 - 09:32 am.

    Deep Breaths and Calm Down

    As much as I enjoyed this journey through constitutional arcana, I don’t think we need be too concerned about the conclusion coming true (The last sentence should have read “The End?”, in the manner of some cheesy 50s horror feature).

    It’s the premise that Michael Bloomberg gets enough votes to disrupt the outcome that I find implausible. His political base is concentrated largely in New York City. Outside the five boroughs, he is known–if at all–as the billionaire spending all that money to promote gun control, or as the nanny state mayor who banned 20 oz. sodas. While Donald Trump has been promoting himself relentlessly for the last 30+ years, Mr. Bloomberg is largely unknown to most of America. I can see him getting a few protest votes, but I don’t see him getting as many as Ross Perot. Certainly, I don’t think he will get enough to impact the totals in the Electoral College.

  3. Submitted by Dennis Tester on 01/26/2016 - 09:37 am.

    Bloomberg has an inflated view of himself

    Outside of New York he’s a virtual unknown.

    He was a great mayor but once the republican voters hear of his gun grabbing history and his totalitarian Slurpee policies, he’d never get any republican votes.

    And since liberal democrats have been convinced that billionaires are evil, he’d never get any liberal votes. That leaves the moderate/independent voters who haven’t been affected by the rhetoric coming from either side which I put at 15%.

    More than John Anderson (7%) but less than Perot (19%) and taking the most votes from the democrat nominee.

    • Submitted by Kurt Nelson on 01/26/2016 - 10:50 am.

      “Outside of New York he’s a virtual unknown”

      Unless you have ever heard of the stock market, then the name Bloomberg is sort of well known.

      • Submitted by Dennis Tester on 01/26/2016 - 11:29 am.

        I’m not referring to you and me

        I’m referring to the low-information voters who decide presidential elections.

        • Submitted by Bill Schletzer on 01/26/2016 - 12:24 pm.

          Oh, like Republicans?

          Are you considered to be “low information” if you have seen every episode of Celebrity Apprentice? I hear Donald will be choosing his cabinet in a special episode.

      • Submitted by RB Holbrook on 01/28/2016 - 10:04 am.

        Branding

        While those who know something about financial journalism would make the association, Bloomberg has not been personally associated with the brand for years. He certainly did not promote himself the way Donald Trump has. There has never been a Bloomberg board game, and no one, as far as I know, has tried to market a “Bloomberg” men’s fragrance.

        Without looking it up, do you know what Michael Bloomberg looks like, or sounds like (archetypal New Yorker)?

    • Submitted by RB Holbrook on 01/26/2016 - 12:14 pm.

      Inflation

      I think what you’re saying is correct. My only disagreement is with your estimate of 15%. That strikes me as too high. Disaffected moderates seem more likely to stay home than they are to cast a protest vote.

      There are many progressives who swear they would never vote for Hilary Clinton, but I don’t see them as voting for Bloomberg (even if he ran against her, which he seems to say he would not do).

  4. Submitted by William Lindeke on 01/26/2016 - 10:02 am.

    Trumpberg

    If Trump is the nominee, which is possible you must admit, and Bloomberg gets in the race, they will cancel each other out. Two billionaire New Yorkers is two too many.

  5. Submitted by Ray Schoch on 01/26/2016 - 01:47 pm.

    I don’t know

    …how this will all turn out, and I won’t be around to read about it, but this is shaping up to be an election that might well deserve its very own chapter in just about any reputable American history textbook a century from now (assuming there’s still a United States, and that schools still exist, and that texts of some sort are still in use, and…). A Bloomberg run would simply add (more) strangeness to an already-strange political scenario, the likes of which we haven’t seen since those early 19th century contests that illustrated (and reinforced) the need to have some policies in place to take care of truly weird situations. More than quite a few of its predecessors, this might truly be an election where choosing “none of the above” would seem like a rational act on the part of the voter.

    • Submitted by Pat Berg on 01/26/2016 - 04:30 pm.

      What do you mean . . .

      “I won’t be around to read about it”?

      Ray?????

    • Submitted by Bill Willy on 01/27/2016 - 12:18 am.

      Amen!

      “. . . need to have some policies in place to take care of truly weird situations.”

      It would be tricky, no doubt, but somebody ought to make a list of those situations and get the related policies or rules on the books ASAP!

      Nationally, for sure. But, applying the same idea to governors and state legislators as well as candidates, the next session starts here in just a few weeks and we really could’ve used at least a few of those guidelines in late May and June last year.

  6. Submitted by Harris Goldstein on 01/27/2016 - 11:49 am.

    President Ryan

    Not so far fetched. If, lacking a majority candidate, the House were to select a 2nd or 3rd place Republican, the blowback would be significant. Not to mention the russian roulette nature of picking Trump and the visceral dislike of Cruz.

    So much, much easier to punt with no choice and allow Ryan to take the office. Even for 4 years if necessary. I suspect that would get bipartisan support even if a Democrat was among the 3.

    • Submitted by Jim Million on 01/30/2016 - 11:24 am.

      Possible

      I’ve been musing about Paul Ryan’s elevation to Speaker of the House, perhaps in anticipation of things to come.

      Were Trump elected President, and if he were to resign during his first term, his VP (who?) would move into the White House and Ryan would move up to VP. Am I correct here?

      So, who might be Trump’s VP? (Hard to see Ryan there this soon)

      • Submitted by RB Holbrook on 02/01/2016 - 09:28 am.

        Not Necessarily

        “Were Trump elected President, and if he were to resign during his first term, his VP (who?) would move into the White House . . .” Correct so far. “[A]nd Ryan would move up to VP.” Close, but no cigar. Under the 25th Amendment, the new President would nominate a Vice President. The new Vice President would take office upon confirmation by a majority vote in Congress. The Speaker is not disqualified from becoming VP, but his ascendancy would not be automatic.

        The Speaker’s place in the line of succession for the Presidency is set by act of Congress. The Constitution provides for the election of a Speaker, but does not set out his or her duties.

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