This article is Part 3 of a 3 part series. See Parts 1 and 2.
Suppose hypothetically that the Electoral College vote is close this year. Suppose also that someone other than Donald Trump or Hillary Clinton wins more electoral votes than the difference between them. This could be another candidate carrying a state, say McMullin winning Utah. Or, it could be a number of electors breaking faith. Say Republican electors voting for McMullin in Utah.
This is where the Constitution sends the election to the House of Representatives. Why? I don’t know, it was 1787. There was no such thing as a national runoff election back then.
The election goes to the House of Representatives, and said body chooses the next President.
Contrary to popular error, they can’t just choose anyone they want. According to the Twelfth Amendment, they choose the President from among the top three candidates in the Electoral College.
Contrary to another popular error, they don’t just choose the President with a normal vote. They vote “by state.” This means that the Congressional delegation from each state will confer among itself and the majority of said state’s Congressional representatives get to cast that state’s one vote, regardless of the state’s population.
In our hypothetical, the House of Representatives, led by Speaker Paul Ryan, chooses from among Trump, Clinton, and McMullin.
Republicans currently control a majority of states by an even larger majority than they control a majority of seats in Congress. How they would vote in this hypothetical is anyone’s guess, but Paul Ryan’s history with Trump does not suggest he would bend over backwards to help his party’s nominee.
It is therefore entirely possible that we will see the first Twelfth Amendment crisis in history play out before our eyes this year. It is consequently possible that we will see a President elected with few if any popular votes cast in his or her name, and a handful of electoral votes.
What are the odds of this happening?
Extremely remote.
The reason is simple. Third parties just aren’t strong enough to win electoral votes. The last time one did was in 1968, when the deep south found itself without a home in the major parties. Alabama Governor George Wallace won four states as a protest against Richard Nixon and Hubert Humphreys.
His goal was simple: win enough electors to tie up the Electoral College, and he could be the king maker. With the House of Representatives tied in knots, he could negotiate with both major candidates, and then break the tie by endorsing the one that offered him the better deal. The south would latch onto its new found power and vote for him every four years, guaranteeing his status as gatekeeper.
There was just one problem with that strategy. Nixon won the election in a landslide, and the Wallace campaign became a footnote in history. No third party has won an electoral vote since. Not even Ross Perot in 1992 or 96 with the millions he spent on his campaigns.
For what it’s worth, save your effort. This election is not going to be an electoral tie. Will a third party win electoral votes?
Enough to send a message? Perhaps. Enough to swing the election? It’s not in the cards.
