Donald Trump appears to be on his way to the Republican nomination, but fear not; this may wind up being, if nothing else, an excellent chance for a Civics lesson! Welcome to class.
Most folks have forgotten (or never knew) this, but the US Constitution does not provide any role for political parties in the Presidential election process. The Electoral College was specifically established to give the States, not the people, the predominant role in electing the President (Article II, Sect. 1).
Sure, parties can pick their candidates however they choose, but there were not even conventions until the 1830s, and long after that convention delegates were selected by State caucuses. There were no primaries until the early 20th century. In the General Election, the people can vote for their party’s choice (or anyone else on the ballot), but that just decides which candidate “gets” their State’s electoral votes.
Here’s where it could get fun this year. If no candidate receives a majority of the electoral votes in the November General Election, the House of Representatives is empowered by the Constitution by the 12th Amendment to choose the President. And they do this voting by State delegations, not as individual representatives. So it doesn’t matter which party holds the majority in the House, but which party holds the majority in each of the State delegations (we’ll come back to this).
The last (and only) time this happened was in the infamous 1824 Presidential election (which did not get decided until 1825). The four candidates who finished with the highest number of electoral votes in that election were Andrew Jackson (99), John Quincy Adams (84), Henry Crawford (41), and Henry Clay (37). The 12th Amendment directed the House, voting by States, to choose from among the top three, leaving Clay, the sitting Speaker of the House, out of the picture.
At that time, near the end of the “Era of Good Feelings,” Democratic-Republicans dominated national politics. The four Presidential candidates were all from this party, so each was defined more by personality and region than by party affiliation. While Clay may have no longer been in the running, his position as Speaker kept him closely involved in the process. Clay detested Jackson, and while he was not allowed to vote (having been a candidate himself), he encouraged his supporters to back Adams, who was elected. So poor Andrew Jackson, while winning the most electoral votes in the election, was denied the Presidency (he came back to win big in the next election, though).
So there’s our precedent for a potential Presidential fracas this fall (and perhaps beyond). It is quite possible that if Trump is the Republican candidate, a more moderate Republican “establishment” candidate would mount a third-party run. Romney has said no (so far), but who knows what happens when it comes down to it? Or perhaps a Kasich/Rubio ticket? And in the current volatile political climate, there’s a good chance the electoral votes could fall so that no single candidate wins an electoral majority.
Granted, third-party runs for President – even in potentially propitious times — have been notorious for garnering popular support without scoring the needed States to make an electoral impact. But just as a mental exercise let’s imagine how this year’s election could shake out. There are three candidates and none receives a majority of the State’s electoral votes. The House exercises its Constitutional prerogative to choose the next President. As Speaker, Republican Paul Ryan (vice-presidential candidate last time around!) presides over the proceedings.
We know the Republicans have the majority of members in the House, but how do the State delegations line up?
In the current 114th Congress, House Republicans hold a strong majority (over 60 percent of the state’s delegation) in 31 States; Democrats only dominate in 13 states. Three states’ delegations are evenly split, two have slight Republican majorities, and one (Illinois!) is slightly Democratic. With these numbers, it seems fairly likely that the Republican Representatives in a majority of states—most of whom are not Trump fans—would easily be in a position to give the election to a potential third party Republican challenger.
Who would that person be? Time will tell, but there is still something else to consider: the 115th Congress is being elected in November as well. No one knows for certain what the make-up of the new House membership will be. After the November election, results are certified by each State, then each State’s Governor officially declares the electors for the winner in a document that must be sent to the sitting 114th Congress by December 13. The Presidential Electors must cast their votes by December 19. Generally (but not yet officially) the results are known, and everyone goes home for Christmas.
But what if there is no clear electoral majority?
Unless some creative manipulation takes place, it will be up to the members of the new 115th Congress, who take office on January 3, 2017 and who will be in place when Congress meets in joint session on January 6, 2017. They will officially count the votes (as the Constitution requires) and declare a President (or not, as the case might be). So there we have it: the potential for a “Presidential Election of 2017.”
This situation would not exactly be a repeat of 1825, because back then the newly-elected Congress did not meet until March 4 (this date was changed by the 22nd Amendment to January 3). So in 1825, it was the still-sitting 18th Congress which selected J.Q. Adams as President on February 9. This time around, things have changed a bit.
Still, it would be a fun exercise in civic education. And hopefully it would bring an end this ridiculous notion of a Trump presidency.
Rick Williams is a history teacher in Illinois.