A Constitutional Nightmare Looms

A Constitutional Nightmare Looms
AP Photo/Zach Gibson
A Constitutional Nightmare Looms
AP Photo/Zach Gibson
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Twice in the last two decades the contender inaugurated as president of the United States prevailed, even while losing the popular vote. But given the ongoing vicious cycle of political recrimination—a phenomenon put on display during the State of the Union, when the president refused to shake the speaker’s hand, and the speaker theatrically ripped up the president’s speech—I fear a much more troubling scenario will emerge in the near future. To avoid a crisis, our nation’s leaders need to acknowledge the dangerous implications of their endless political gamesmanship. Then they need to turn the country in a new direction.

Most political observers today are generally aware of how the Electoral College works. The Founders designed it as a compromise intended to give larger states an outsized influence on the outcome, while simultaneously providing smaller states more weight than they would have through a direct election. Because one of only two tickets has generally won an outright majority of 270 electoral votes, the Electoral College has almost invariably produced a clear winner—even when that result has conflicted with the popular vote.

But now imagine a scenario where a third ticket were to win a popular majority in a small number of states, thereby claiming some number of electoral votes. Imagine if John Anderson had won several states in 1980, or Ross Perot had won a handful in 1992. Or imagine two candidates splitting the electoral votes 269-269. What too few Americans realize is that, in the event no ticket secures an outright majority of 270, the outcome of the presidential election is thrown to the newly elected members of the House of Representatives. And that’s where my nightmare scenario begins.

It would be one thing if the Founders had specified that the House would simply hold a vote to determine the winner—that might seem, in the public’s view, a legitimate way to establish a winner. But that’s not how the process would play out. Instead, the Founders specified that the House would select a president through a so-called “contingent” election. That is, instead of individual members casting ballots, each state delegation would have a single collective vote. California would have a single vote, as would Idaho, despite the wide discrepancy in population. And each state’s vote would presumably represent the preference of a majority of that state’s representatives.

Follow that thread to its logical conclusion: Imagine that the Democratic Party’s ticket in an upcoming election were to win a plurality of the popular vote and a plurality of the electors—but then imagine that, because of a third-party candidate or an Electoral College tie between two candidates, the Democratic ticket fell short of 270 electoral votes. Imagine that the Republican ticket came in second both in the popular vote and within the Electoral College. Suddenly, the outcome of the election would be thrown to the House of Representatives.

Assume now that House members each supported their party’s candidate and that the distribution of House seats broadly reflected the current reality. Because so many small states are reliably Republican, those states would almost surely support the Republican candidate. In other words, despite losing both the popular and electoral contests, in a “contingent election” where Wyoming’s vote holds as much weight as New York’s, the GOP nominee would likely win with 29 votes to the Democratic ticket’s 22. That is the “constitutional” system, even if seems patently undemocratic.

In previous eras—in moments when the parties worked productively together—you might expect in such circumstances that party leaders would come together to work out an accommodation. Democrats and Republicans in the House might work out a compromise to ensure that neither side felt entirely aggrieved by the outcome, such as naming someone from the other party as vice president or committing to a thoroughly bipartisan cabinet. But in an era where leaders are almost invariably at odds, and both parties’ bases view compromise as apostasy, that sort of resolution is hard to fathom. The nation would be almost inextricably divided about whom the “rightful” president truly is. And congressional leaders, beholden to their supporters, would be hard-pressed to make any concession.

Some will argue, for good reason, that this nightmarish scenario necessitates a change in our Constitution. But small states may balk at that suggestion. So in the absence of a procedural change, our nation’s leaders need to take a different approach. They need to begin, now, establishing bipartisan goodwill. The sanctity of our system rests not on the perfection of our Constitution, but on the wisdom of those in power. The wise move is for courageous leaders to look past the impulse to demonize those across the aisle. We need to act now to build bridges that will bring the country together in times of political strife.

Nancy Jacobson is a founder of No Labels, a national organization of Democrats, Republicans and independents dedicated to a new politics of problem solving.

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