2010 midterms, and Twelfth Amendment, could decide 2012 presidential race – literally

Oct. 29, 2010

By Darren Richardson

Special to The Punditty Project

The U.S. presidential elections of 1796 (John Adams over Thomas JeffersonThomas Jefferson) and 1800 (Jefferson over Adams) were anything but smooth; GeorgeGeorge BushBush-Al GoreAl Gore 2000 looks like a “Kumbaya” sing-along in comparison. Addressing the problem, the Twelfth Amendment to the U.S. Constitution was ratified in the summer of 1804, well in advance of the November elections that year.

It reads, in part, as follows:

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.

Simply put, this means that if no candidate in the 2012 presidential election gets 270 or more Electoral Votes (EVs), the House of Representatives would select the president. If a strong third party candidate is on the ballot, this scenario becomes increasingly likely.

2012 Timeline

Results of the 2010 midterms on Tuesday will determine the composition of the 112th Congress, which will meet from Jan. 3, 2011, to Jan. 3, 2013. Republican John Boehner of Ohio would likely be the next Speaker of the House if the GOP manages to oust the Democratic majority in 2010.

The next presidential election will be held on Nov. 6, 2012. The popular vote tallies on this day direct Presidential Electors from each of the 50 states on how to vote at the official presidential election in December.

The Presidential Electors meet the first Monday after the second Wednesday in December; in 2012, that will be Dec. 17.

Those results will be made public after the 113th Congress is seated in January, but don't put it past Boehner to scheme for a reinterpration of the Constitution by the right-leaning U.S. Supreme Court, especially if the Democrats retake a House majority in 2012. If anything, the U.S. Supreme Court is more right-leaning after the Bush years than it was in 2000, when it effectively appointed him president by ordering an end to the recount mandated under Florida law.

If President Obama receives 270 or more EVs in the election, he will be re-elected president. If one of his opponents receives 270 or more EVs that day, that person will become the 45th president of the United States.

However, if no candidate for president in 2012 receives the 270 or more of the 538 EVs, the House of Representatives may well be very busy indeed come the week before Christmas. Depending on the outcome of the 2012 congressional races, the choice of presidential candidates before them and the makeup of the incoming Congress, the Speaker of the House may be in a hurry to get that two-thirds quorum of states required by the Constitution. That would mean House delegations from at least 34 states would have to vote, and 26 of those states would have to choose the same candidate. And if the makeup of a Republican-controlled House didn't change significantly after the 2012 elections, there would be no special hurry, anyway.

How it could happen

In this report, remember that EV allocations based on the 2000 Census are being used for purposes of speculation. By 2012, however, those numbers will have changed somewhat and be based instead on the 2010 Census. The key point is to remember that it takes 270 EVs to win the presidency, and that there are 538 EVs in play.

For the sake of outlining an imaginable scenario that could lead to this potential Constitutional crisis, let’s imagine Sarah Palin running as a Third Party candidate. This is not that outlandish of an idea, given some of her recent remarks and the ongoing infighting in the GOP. Let’s also assume that the Republicans nominate Mitt RomneyMitt Romney and that President Obama is renominated by the Democrats.

If Palin wins the same states independent George Wallace won in 1968 – Arkansas, Louisiana, Mississippi, Alabama and Georgia – she will have 45 EVs. But Palin’s appeal is much broader than Wallace’s, so let’s put some other Southern states in her column – South Carolina, Kentucky and Tennessee. That’s 27 more Electoral Votes, giving Palin a total of 72.

Although Palin appeals to Southern voters, she is actually from the American West. It’s not that big of a stretch to see her carrying her birth state of Idaho, her home state of Alaska, Utah and Wyoming. That’s an additional 15 EVs, giving her 87 total. She could possibly even carry one or both of the Dakotas, Kansas, Nebraska, Oklahoma and what would be her biggest electoral prize, Texas. Using the 2000 Census allocations, that would give her 145 EVs, with Obama and Romney trying to reach 270 from the remaining 393 EVs.

More important than the number of EVs, however, will be the number of states she wins. This is because Congressional delegations from each state only get one vote for president. If Palin wins all the states hypothetically awarded to her in this admittedly speculative article, then she would have won 18 states, possibly the most of any candidate if Romney and Obama split the remaining 32 states.

While each House member from each state would get a vote, the states would only get a vote as a unit. For example, let’s say that Mississippi has four House members based on the 2010 Census numbers. Supposing that three are Republican and one is a Democrat, the state’s one vote under the Twelfth Amendment would likely go to Romney – unless Palin carries the state, in which case there would be serious pressure on the House members to choose her over Romney.

How would delegations vote?

Given the fact that she would be running as an independent, this would put Republican delegations from states that she won in a quandary. A case could, should and would be made that the delegations should vote the will of the people, at least on the first ballot. This means that if Palin won 18 states with Obama and Romney winning 16 states apiece, the House would have to keep on voting until one of the candidates emerged with 26 or more states voting on his or her behalf.

In 1824, the only time in U.S. history the Twelfth Amendment has been invoked in the selection of a president, the original leader in EVs did not win the presidency. Based on the results from the General Election, Andrew Jackson won 99 EVs, while eventual President John Quincy Adams received 84. Two other candidates also received EVs that year: William Crawford with 41 and Henry Clay with 37. At that time, there were only 261 EVs in play, with 131 needed to win the presidency.

Thanks to a deal between Clay (who despised Jackson) and Adams, it only took one round of voting to select the president.

But what if Palin isn’t willing to deal with Romney, or vice versa?

Then voting continues until one of the presidential candidates receives the vote from 26 of the 50 states. And suppose the deadlock isn’t broken by Inauguration Day 2013? Vice President Biden would assume the presidency, but it is constitutionally unclear what would become of Obama, whether or not the House could keep voting, or if Biden would serve out the presidential term through January of 2017.

As strange and unlikely as this Twelfth Amendment nightmare sounds, it’s always worth remembering that longtime St. Louis Cardinals announcer Jack Buck’s recurring words of wisdom about baseball can also apply to politics. And those words?

“Stranger things have happened.”

SPECIAL REPORT COMING AFTER THE ELECTION: Will GOP, Palin try to triangulate Obama in 2012?

Sources:

United States Presidential Election, 1824 – Wikipedia

Twelfth Amendment to the U.S. Constitution – Wikipedia

Sarah Palin will run in 2012 “if there’s nobody else to do it,” ABC News, Oct. 28, 2010

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