Scenario for Wakefulness: Electoral Deadlock in 3-Way Presidential race


Next time you have trouble sleeping, stick to counting sheep. Don't try counting electoral votes. I did that recently, after reading two new national polls that suggested there might be a real three-way presidential contest this year. I haven't had a good night's sleep since.

An NBC/Wall Street Journal poll showed George Bush ahead of Ross Perot and Bill Clinton by 35 percent to 30 percent to 27 percent. A CNN/Time magazine poll showed Mr. Perot leading President Bush and Governor Clinton 33 percent to 28 percent to 24 percent.

It occurred to me that if public opinion stays this close, the following outcome is at least a possibility:

President Bush and Ross Perot finish almost even in the popular vote, comfortably ahead of Bill Clinton. George Bush carries every state he won in 1988 (40, with 435 1992 electoral votes), except those he won with less than 55 percent of the popular vote (12, with 172 electoral votes), and except Texas (32 electoral votes), where native son Perot is running ahead of adopted son Bush in the polls, and except Oklahoma (8), where the Perot vote is also quite strong, and except Arkansas (6), which is Clinton territory.

Bill Clinton holds every state Michael Dukakis won in 1988 (10 and the District of Columbia, with 107 electoral votes in 1992), except the continental Pacific Northwest states where Mr. Perot is very popular (two, with 18 electoral votes), plus he wins at home (6 electoral votes).

Mr. Perot carries the rest.

This results in Ross Perot winning, carrying 16 states with 226 electoral votes; George Bush is second, carrying 25 states with 217 electoral votes, and Bill Clinton is a weak third, carrying nine states and the District of Columbia with 95 electoral votes.

And the winner and next president of the United States is -- the envelope, please; thank you, Spiro -- Bill Clinton!

Can this really be possible? Yes. It -- or some other similar scenario -- is definitely possible, and some might argue that it is even probable this year. Something like this has happened once before.

How? Why?

When you vote on the first Tuesday after the first Monday in November, you are not technically voting for a presidential candidate but a slate of electors representing your state whose sole duty is to select the president and vice president. Article II and the Twelfth Amendment of the U.S. Constitution explain how this works.

The electors vote for president and vice president. In Maryland -- and most states -- electors are required by law to vote for the president-vice president ticket that got the most popular votes. These laws are probably not enforceable. "Faithless electors" from time to time ignore their mandates in the Electoral College.

That "college" is really a process more than an institution. It has no campus or single meeting place. The Constitution specifies that each state gets a number of electors equal to its representation in the U.S. House and Senate combined. The U.S. Code requires the electors to meet in their respective states on the first Monday after the second Wednesday in December. They vote, then seal and forward "certificates" indicating the voting outcome to the president of the U.S. Senate.

At 1 p.m. on the sixth of January, the U.S. Code continues, House and Senate meet in the House chamber. Two tellers appointed by the House and two by the Senate count the electors' certificates. "The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such a majority," the Twelfth Amendment states, "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 vote shall be taken by States, the representation from each State having one vote."

There are 538 electors in the nation. A majority of that is 270. Recall that in my midnight musings, Ross Perot has the most electoral votes -- but only 226.

So, it's up to the House. The senators file out of the House chamber and the voting begins. The amendment specifies that it takes a majority of states to pick a president. That means 26. In states with more than one member in the delegation, representatives would vote as individuals for a president.

In Maryland, for example, assuming the eight members elected next November are divided 5-3 Democratic, you could probably assume that they would vote 5-3 for Bill Clinton -- certainly if had carried the popular vote in the state, and maybe, probably, even if he hadn't. So Maryland casts one vote for Bill Clinton.

What?! Would representatives dare ignore the will of the people? They might. Especially if the people had no way of finding out how their representatives voted. And it is entirely possible that the House vote would be secret.

The rules adopted by the House in 1825, the only time the Twelfth Amendment has ever been employed, are still in effect. They call for members of each state delegation to decide among themselves how to cast the state's vote.

These rules say states may appoint "tellers" to determine the result, which would allow them to cast secret written ballots. Once the state decision is made, the state ballots stating the decision but not the individual representatives' votes are deposited in a box to be counted by other tellers.

Don't plan on watching this on C-SPAN. The 1825 rules require the House to exclude the press and close its doors before voting.

Now how would the House vote if there had been the sort of popular vote and state-by-state outcome I described above -- President Bush and Mr. Perot just about even, both well ahead of Governor Clinton?

Take an example. Suppose a Democratic representative's district goes for Clinton, her state for Bush and the nation for Perot. There is no clear intellectual and moral mandate. Party loyalty being what it is, I assume Democrats would vote for the governor and Republicans for the president and members of Mr. Perot's party -- . . . uh oh.

Tim Curran of Roll Call, the newspaper of Capitol Hill, has predicted that the 1992 House elections will produce exactly 26 state delegations that are "safe," "likely" or "leaning" Democratic. Eight are expected to be similarly Republican. Fifteen "toss-ups." One "likely independent."

This does not look good for Ross Perot or George Bush.

The only precedent comes from one-party days. So it doesn't directly apply. But it does show that one can win outside the House and lose inside. In 1824, Andrew Jackson got 41 percent of the popular vote and 99 electoral votes; John Qunicy Adams got 31 percent and 84, William Crawford got 11 percent and 41, and Henry Clay got 13 percent and 37.

The House had to chose among the first three. Clay threw his support and influence (he was speaker of the House) to Adams, who was selected with the votes of 13 of the 24 states. (President Adams then named Clay secretary of state.)

What happens if none of the 1993 trio -- Messrs. Bush, Perot and Clinton -- gets 26 votes in the House? The House votes again. The 1825 rules require it to keep voting without conducting any other business till a president is chosen.

Of course, the rules can be changed this year. There are some proposals floating around, including binding representatives to vote as their states or districts voted, fractionalizing a state's single vote, etc. For that matter, the U.S. Code can be changed this year. But I'm having enough trouble sleeping without contemplating all the possibilities.

Scholars disagree about what happens if no president is chosen by Jan. 20, which is the date a new president is supposed to be sworn in under the Twentieth Amendment (which did nothing but change the terms of president and Congress).

The Twelfth Amendment was adopted when presidential terms began on March 4. The amendment says that if no president has been chosen on that specific date, the vice president will act as president. Does that by inference mean the new vice president becomes acting president on Jan. 20? If not, who is in charge from Jan. 20 to March 4?

The new vice president, by the way, will be chosen by the Senate -- one senator, one vote -- from the two highest electoral vote getters. That procedure makes it unlikely that no vice president will have been chosen by Jan. 20. But if one is not, the U.S. Code steps in and says the speaker of the House becomes acting president.

That would be Democrat Tom Foley. First he has to resign as a representative, according to the statute. He may choose not to give up his permanent job for a temporary one. In that case, the president pro tem of the Senate becomes acting president of the United States. That would be Democrat Robert Byrd.

Sweet dreams.

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