|What happens if the presidential election goes to the House of Representatives?
You could be in for a surprise; the process may not work the way you believe.
By: George Noga – March 2, 2016
MLLG is providing this post as a service to our readers. It is way too early to speculate about the outcome of the election; however, the possibility of a third (or fourth) party candidate is much greater this year. Michael Bloomberg is poised to enter the race and to spend billions of his own money under a variety of scenarios such as a Trump nomination or a Clinton indictment or medical crisis. Trump could run if denied the Republican nomination. There are some other plausible scenarios as well.
Most Americans know if no candidate receives a majority in the Electoral College, the election goes to the House of Representatives (“House”). Once the election goes to the House however, the process operates much differently than is generally believed. You may want to print this post and retain it for future reference just in case.
In early January 2017 in a joint session of the new Congress, the President of the Senate opens the Electoral College ballots; tellers count them; and the results are announced by state in alphabetic order. If there is no majority, the Twelfth Amendment prescribes what happens. The House must choose among the top three receiving votes in the Electoral College – the 12th Amendment says this is to be done “immediately”.
Each state gets one vote regardless of size; Wyoming counts the same as California. To be elected president, the winner must receive 26 votes. Under a rule of the House (not a Constitutional provision) a majority of each state’s delegation must vote for one candidate. Florida has 27 house members; a majority of 14 is needed for Florida’s vote to count. There are 7 states with only one house member (AK, DE, MT, ND, SD, VT and WY); how they vote determines their entire state. If there is no majority (a tie for example) that state’s vote is not recorded. The process continues as long as necessary.
Meanwhile, the Senate chooses the vice president from the two highest vote getters for vice president. Each senator gets one vote and a majority of 51 is needed for election. There is no requirement that the Senate coordinate its vote with the House and it is possible the president and vice president could be from different parties. Note: The 12th Amendment requires a quorum of two-thirds of the Senate to be present before voting for vice president; thus, any party with 34 senators could prevent a vote.
The term for President Obama and Vice President Biden ends at noon on January 20, 2017. If the House has not acted by that time but the Senate has, then the Senate’s choice for vice president becomes Acting President. If neither the House nor the Senate has acted by January 20, then the Speaker of the House becomes Acting President with the President Pro Tempore of the Senate next in line.
The president has been elected only once before under the 12th Amendment. In 1824, a four way election between Andrew Jackson, John Quincey Adams, William Crawford and Henry Clay left Jackson 32 votes short of an electoral college majority. Clay threw his support to Adams and on the first ballot Adams received 13 votes of the 25 states then extant – giving him a bare majority and the presidency.
The next time you find yourself in a conversation and someone brings up the possibility of the 2016 election going to the House, you will be loaded for bear.
The next post on March 6th revisits our favorite topic – climate change.