08 Presidential Candidates, Political Analysis

Looking at Rasmussen Reports, what happens if the GOP wins all the states that are in the categories of Leans Republican, likely Republican or Safe Republican, while the Democrats win all the states in the categories of Leans Democrat, likely Democrat or Safe Democrat?  That leaves 4 states in the category of “Toss Up”.  Lets say the GOP wins Ohio and Colorado, while the Democrats win Michigan and New Mexico.  That would result in an electoral tie of 269 votes each.  Under the 12th Amendment to the Constitution, each state’s Congressional delegation to the House of Representatives would get 1 vote each to decide the next President, and a majority of all states, that is to say at least 26, would select the President.  So California gets one vote based on a majority of the votes of its Congressmen and Montana gets 1 vote from its only Congressman.  As it turns out, according to wikipedia.com, the Democrats control 26 states, the GOP 21 states, and 3 are even.  The Senate would choose the Vice President, which is also controlled by the Democrats, however, independent Joe Lieberman may prefer to vote for McCain, whom he has campaigned for, rather than one of the Democrats who want to pull out of the Iraq war, which is the issue closest to his heart.  So we may end up with the Democrat being elected President, and McCain Vice President.  Having the President and Vice President from different parties is not unprecedented in our nation’s history, in fact, its happened several times.  Unfortunately, that also tends to increase the likelihood of assassination attempts, for obvious reasons.  Or Lieberman might vote for the Democrat vice-presidential candidate and the Democrats could win outright.

Another scenario is if there is an electoral tie, but one of the 35 Democratic Congressman from any one of the 8 states that the Democrats have a greater delegation by a single representative retires or dies.  Then, the Democrats would only have 25 states, not a majority of all states, and they could not select the President from the House.  (Of course the GOP could have brought the Democrat state delegation majority from 26 to 25, as is in their interest, if they had won the special election this winter in Indiana, but they did not). 

Fortunately, our 12th Amendment anticipated such a scenario and specifies that the Vice President would then act as President.  What is unclear, however, is whether the Vice President, or Senate selection would be the President, or if the next Congress would vote again on the President to try again to reach a 26 state majority.  More likely than not, it is the former and not the latter, but there are zero cases in our Constitutional history on point because such a scenario has not as yet unfolded.  As the 12th Amendment was passed in 1804, there probably isn’t much in way of legislative history either, so the Supreme Court would have to start from scratch in figuring that one out.  There is probably a 5-4 or 6-3 GOP majority on the Supreme Court, however, so that likely benefits the GOP position in such a controversy.  So let’s assume the Senate makes that decision on the Vice President who will act as President, and then becomes President when after January 20th the states were unable to reach a 26 state coalition around one candidate.  The 49 Democrats and the independent from Vermont will vote for Obama or Clinton, (or Gore), whichever one won the nomination, the 49 Republicans and Lieberman will vote for McCain, resulting in yet again another deadlock tie.  The Constitution then directs that all ties in the Senate will be broken by the Vice President, so Dick Cheney (assuming he hasn’t had a heart attack and died) would then select John McCain as President. 

Say Cheney has a heart attack and dies.  The Speaker of the House, Democrat Nancy Pelosi would then be the next in line.  It is unclear whether she would step in and name the Democrat as President, or if President Bush could then name a replacement Vice President, who would then name the next President, though likely the latter as the Constitution allows the Speaker of the House to become President if both the President and Vice President are killed or incapacitated, but not vote to break ties in the Senate if the Vice President dies.  Still it may make for some very interesting lawsuits…