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Michael Bloomberg vs. the 12th Amendment

By Jay Cost

The political world has been atwitter of late with talk of New York Mayor Michael Bloomberg entering the 2008 presidential race.

Could he win? I do not think so. Actually, I am pretty sure that he could not win.

It is extremely unlikely that, in a three way race, Mr. Bloomberg could take a majority of the Electoral College vote. So, the most likely scenario that is also the best case for Mr. Bloomberg is a split in the Electoral College. That is, Mr. Bloomberg gets enough electoral votes so that no candidate obtains an outright majority of 270 electors. In this case, the race would be decided in the House of Representatives. Specifically, the House of the 110th Congress would decide it.

While this would be better than an outright loss for Mr. Bloomberg, it would still not be very good. Charlie Cook asks the right question:

Could a Democratic House really pick a third-place finisher to be president, or might they opt for a politically compatible independent who finished first?
The answer to this is complicated by the strange nature of the House voting system. It is true that the Democrats have a thirty-seat majority in the House. However, a vote for President in the House is conducted in a most peculiar way. The 12th Amendment states:
[I]f no person have such a majority [of Electoral College votes for President], 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.
You read that correctly. There would not be 435 votes cast for President in the House. There would be fifty. North Dakota and California would both get one vote. Each state casts one vote based upon the vote of the state's caucus. In this regard, the difference between the parties is smaller. In the 110th Congress (the one to "choose immediately"), the Democrats have a majority of legislators in twenty-six states, the Republicans in twenty-one states. Three states - Arizona, Kansas and Mississippi - are split. Thus, on a straight-up party line vote, the Democrats would have an absolute majority of a bare state.

Continue the amenders:

[A] quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all 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 [Twentieth day of January] next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President

So, as far as the vote for President goes, the Democrats do not have an advantage of thirty votes, or even an advantage of five votes. They have a one vote advantage. If that does not hold, no presidential candidate in the House would garner a majority, and the selected Vice President would be sworn in as President, and would serve until the House makes up its mind.

It might be difficult for this majority to hold. After all, two of the Democrats' twenty-six states are North Dakota and South Dakota, both of which will probably go for the Republican by a 2-1 margin in the popular election, and both of which are represented in the House by single members, Democrats Earl Pomeroy and Stephanie Herseth, respectively. Could both of them be counted upon to vote with their party? Could Mike Castle, the sole Republican from Delaware, be counted upon to vote with his party? Maybe, maybe not. The bottom line is that the Democratic majority in this instance would be relatively small and tenuous. There might very well be no decision reached, in which case the elected - or rather, selected - Vice President serves as Chief Executive.

And how is the Veep selected?

[I]f no person have such a majority [of Electoral College votes for Vice President], then from the two highest numbers on the list the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
So, the third place finisher in the Electoral College would not even see his vice presidential candidate considered for nomination. Here, there is no stipulation that there be a state-by-state count. However, a majority is still necessary. And who is the 51st "Democrat" in the Senate? The scare quotes give the answer: Joe Lieberman. If he votes for the Republican candidate, and everybody else votes by party, the vote would be 50-50. Ties in the Senate are broken by the Vice President, in this case, Republican Dick Cheney. So, again, a Democratic majority in the Senate for something as consequential as this might not be sufficient to achieve the party goal.

[N.B. Pause a second to appreciate the thinking of the Founders here. The voting procedure in the Senate is explicitly set up to make sure that we have a President on the day of inauguration and that he or she is preferred by an absolute majority of at least one body. This is why only two veep candidates are up for consideration in the Senate and the vote is not state-by-state. A tie is literally impossible. So, even in the worst case scenario, we still get a President on January 20th. This is why I am usually annoyed when people talk about "constitutional crises," for they imply that we find ourselves in a position for which our Constitution has no provision. People would invariably call this kind of situation a constitutional crisis, even though the Framers included a provision to preclude a crisis.]

All in all, an election decided by the House could be very complicated - especially in light of the fact that, at least in this instance, the GOP has some leverage. This structure admits of multiple compromises that could reasonably occur. Some of them are quite "perverse." We might wind up with a Democratic President and a Republican Vice President. We might wind up with a Vice President serving temporarily or even permanently as President, as the House lacks the capacity to break a tie. There are multiple ways this could work out.

Few of them favor Bloomberg. Mr. Cook notes that Republicans and Democrats would have to cast a vote for the independent Mr. Bloomberg. Will they do that? Surely, you say, Mr. Bloomberg should receive the House votes for the states that he carried in the Electoral College. That is just fair. And, for that matter, would House members really risk voting against their states? After all, they will be up for reelection in 23 months (by that
point) and they do not want to alienate their constituents.

The key phrase in the last sentence is "their constituents." Suppose that Mr. Bloomberg wins New York. He surely is not going to win New York's fifteenth congressional district, which is held by Rep. Charlie Rangel. So, for whom does Mr. Rangel vote if his intention is to reflect his constituents' views? The Democratic nominee, of course!

In other words, to presume that because Mr. Bloomberg won a state, he can lay a democratic claim to the votes of the members within that state's House delegation is to commit the fallacy of division. If representatives are acting democratically - i.e. if they are voting the interests of their constituents - they will follow how their districts voted.
Accordingly, just because a state voted for Bloomberg does not mean that a plurality of districts in that state voted for him. Indeed, it could be that none of the districts voted for Mr. Bloomberg.

This could be a major hurdle for him. The Democratic and Republican nominees would not suffer from this problem nearly as much, as presumably they could induce several of their partisans (especially the lame ducks) to vote for them in the House even if their districts went another way. But Mr. Bloomberg would not have this kind of bond with any House member. So, he would have to induce them to vote for him based only upon the argument that they should represent their constituents. For this to be successful, he will have to have won a large bloc of congressional districts that add up to a large bloc of states.

It gets worse for him. Assume that Mr. Bloomberg does indeed sport victories in a large number of states, that he can indeed lay a democratic claim to enough Representatives to win those states in a House vote, and that he does indeed induce those Representatives to vote for him. What happens next?

There is probably a split decision. Mr. Bloomberg is unlikely to win twenty-six states in this manner, and he will probably rack up enough states to keep either the Republican or the Democratic candidate from winning twenty-six states. Thus, no candidate wins a majority in the first House vote, and there is a re-vote. That means that, eventually, compromise among members will have to occur. In other words, some set of Representatives will have to vote either against their party, against their constituents, or both. Otherwise, the winner of the Senate contest will become President.

Whose interests are least represented in an internal House compromise of this nature? Mr. Bloomberg's! He'll probably be the first one tossed overboard! Imagine the post-vote press conference of Nancy Pelosi and John Boehner, "Republicans and Democrats had to compromise with each other to put an end to this constitutional crisis. Somebody had to lose. And it was up to us to make the choice. We chose [insert name of losing Republican or Democrat] and Mayor Bloomberg. We're sorry. They're good human beings and probably would have made fine Presidents, but our system demanded that we make a choice and we made it." Surprise, surprise! The House, which is 435-to-0, Republican/Democratic-to-Independent, decides that the loser in the compromise is...the Independent!

All in all, it is very difficult to envision a reasonable scenario in which Mr. Bloomberg wins a House vote. Sure, he could wind up the compromise choice. It is theoretically possible. But it is quite unlikely. After all, for Bloomberg to win the House vote, it would have to be that almost no member of the House gets their first choice for President.

Dr. Kenneth Arrow and his impossibility theorem tell us that this is possible, but that does not mean it is likely. In fact, it seems exceedingly unlikely. The only likely way he could win such a vote is by having a strong claim to districts that sum to a majority of twenty-six states. In that case, he would probably have won the Electoral College outright, anyway.

So, Mr. Bloomberg's best path to the White House is probably a win in the Electoral College. I don't think he could do that. I don't think even a national hero like Dwight Eisenhower could win as a third party candidate. We'll talk more about the general problem that third parties have in the coming days.

One final point is worth mentioning. Chuck Hagel seems to be flirting with the idea of running with Mr. Bloomberg. This would be a dumb decision.

Return to the 12th Amendment, specifically how the Vice President is selected: only the top two Electoral College vote getters are considered in the Senate. Mr. Bloomberg might be thinking that he only has to win a few electoral votes to send the election to the House, where he has a greater chance of garnering a majority. But unless he is one of the top two vote getters in the Electoral College, his vice presidential nominee will not be considered by the Senate. The Senate only considers the two veep candidates who received the most electoral votes. As Bloomberg's strategy would probably be to finish third in the Electoral College and first in the popular vote, his strategy therefore implies that his veep candidate is going nowhere.

This would create for Senator Hagel a perverse final vote in Congress: he would have to vote for his opponent.

The only reason Senator Hagel should sign up for such a run is if Mr. Bloomberg warrants that he will make him Secretary of State (or something) if the latter should win the presidency and the former lose the vice presidency. Of course, how does one go about enforcing such a contract? I do not know, and I think Senator Hagel would be wise to pass on any offer presented to him.

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