The recent turmoil in the Republican party has sparked a slew of commentary about how the party might break entirely with Trump and replace him with a different nominee (with this Politico op-ed probably being the most comprehensive).
Personally, I think all these speculations are still extremely speculative, and that the overwhelmingly most likely scenario – even with the current level of internal strife – is that Trump/Pence remains the official GOP ballot choice on Election Day. (The idea, here promoted in the WSJ, of Trump pledging to step down post-election and hand the Presidency to Pence seems particularly far-fetched.)
But the discussion has nevertheless thrown up some little-known facets of the American electoral process, that might become actually relevant in a later election.
Most people with an interest in American politics are aware of how the Presidential election is formally decided not by the popular vote, but by the electors that are elected from each state – and that all the electors from each state* are given to the candidate who received the most votes in that state. This mean that it’s completely irrelevant whether you receive 60%, 70%, 80% or 99,99999% of the votes in a single state – which in turn means that the campaigns focus on the handful of “swing states” where either party stands a chance of achieving a majority. Large states like California and Texas are largely ignored, because it’s a foregone conclusion which party will receive over 50% of the vote.
And it also means that occasionally – as famously happened in the 2000 election – a candidate may receive the highest total number of votes, but still lose the election due to having fewer electoral votes. It’s therefore a often-repeated factoid that “You need 270 votes in the Electoral College to win”.
However, it’s less well-known (I certainly wasn’t aware of it until just now) that unlike the statewise elections of electors, which awards them to whoever gets more votes than any other candidate, you literally need 270 Electoral College votes to win – even if the vote is split three or more ways. In other words, 268 EC votes will not be enough – even if the remaining votes are split with, say 180 to one opponent and 90 to another. In this situation with a “hung” Electoral College, it’s up to the House of Representatives to elect the President – and while they are somewhat constrained by the EC vote (they can’t just pick a name at random), they are allowed to choose between the three top candidates.
For today’s speculations and hypothetical scenarios, this means that replacing Trump wouldn’t necessarily require replacing him on every ballot (which would be prohibited at this late stage anyway). In theory, the GOP would only need to get an alternative candidate (whether Pence, Romney, Ryan, Cruz, or whoever) onto the ballot in a few solidly red (Republican) states, allowing him to get the necessary handful of electors to claim third place in the EC. If (and that’s the biggest of many big Ifs in this scenario) he would also split the vote sufficiently that neither Trump nor Clinton reach the target number of 270, the House would be perfectly within its rights select this third-placed candidate as President. (Indeed, even if there is no alternative Republican candidate, they could even elect Gary Johnson if he were to win the necessary states and they see him as preferable to Trump.)
Of course, this requires the Republicans to retain control of the House (the ballot is conducted after the newly elected Congress assembles) – but that still appears the most probable outcome, and is made even more likely by another quirk of the President-elected-by-Congress rules: While each state normally has a number of Representatives corresponding to their population, this particular vote specifies that each state’s delegation has only one vote, which favours parties with support in many small states (as well as parties that hold slim majorities within each state).
Now, as previously mentioned, it’s highly unlikely that this will have any bearing upon the current election, where the odds of any third-party candidate winning even a single state are slim. It’s true that recent polling in Utah has indicated a possible upset there – but, as the same article points out, this probably requires Trump to perform so poorly in general that Clinton will secure the Electoral College majority by a large margin.
But these rules might affect the impact of third-party candidates in future elections. Normally, the winner-takes-all rules for each state means that third-party candidates are limited to playing the role of spoiler – as in 2000, where Ralph Nader’s 97,000 votes in Florida are widely seen as being decisive in Al Gore’s losing the state (and therefore the election). Even when Ross Perot received a creditable 19% of the national vote in the 1992 election, he was left without a single electoral vote.
The last third-party candidate to win any states, was George Wallace in the 1968 election (in the wake of the Civil Rights Act), winning five states, 46 electoral votes, and 13,5% of the national vote. Although Nixon beat the Denocratic candidate Hubert Humphrey by only 0.7 percentage points (43.4% to 42.7%), he won the Electoral College by 301 votes to Humphrey’s 191. If the electoral vote had more closely resembled the national vote (for example if Humphrey had won California), the election would have been settled by the House of Representatives (and Wallace’s sympathizers might have achieved a kingmaking role by holding the swing vote in certain state delegations).
The last time this has actually happened is in the 1824 presidential election, when Andrew Jackson won both the popular vote and the Electoral College by clear margins, but John Quincy Adams was elected by the House (partly due to being endorsed by the fourth-placed candidate).
So, how do these rules actually affect the electoral process and make it different from what would have been the case if the Presidency had simply gone to the candidate with the highest number of electoral votes? Well, in one sense these rules bring the US system closer to the more common two-round presidential election (with a second run-off round being held between the top two candidates if nobody receives >50% in the first round). It means that even if the left-of-center vote is split between two candidates, they will be able to “pool” their vote in the House to ensure that one of them wins. (Example: Left-wing Democrat gets 25% of the vote, centrist Democrat gets 35%, Republican gets 40% – assuming the left-of-center majority is reflected in the House, one of the Democrats will win, while a “simple majority of electoral votes” rule would have given a Republican victory.)
So from this perspective, the 12th Amendment makes it slightly easier for third-party candidates to run for President without playing into the hands of their greatest opponent by splitting the vote. (Presumably, this was also part of the intention when the rules were originally adopted.) However, in practical terms, this will be outweighed by the winner-takes-all rules in each state, which will have a far greater ‘spoiler’ effect.t
Furthermore, the above example with two Democrat-leaning candidates pooling their votes is based on the premise that the same election yields a Democrat majority in the House. Even if the majority of voters vote for a Democrat-leaning presidential candidate, it’s by no means certain that this will result in a corresponding HoR majority (especially with the “one vote per state delegation” rule). Thus, a hung Electoral College might well result in a the second- or even third-place candidate being elected President – even if the popular vote would have chosen a different candidate in a two-way run-off vote.
Giving the established congressional parties the final say over a hung Electoral College also makes it extremely hard for a truly independent candidate to win a Presidential election. Using the current election as an example: Even if Gary Johnson managed to receive the highest number of electoral votes (beating both Clinton and Trump), he would also need to achieve the even more unlikely target of a 270-vote absolute majority. If Johnson only got 200-250 votes, he would probably see the Presidency go to either Clinton or Trump (depending on which party controls the House) – regardless of whether that candidate received far fewer votes.
In today’s highly partisan and polarized climate, these rules about hung Electoral Colleges are unlikely to come into play at all – but if they did, their effect is likely to be a further cementing of the two-party system and a block to independent candidacies.
*) With the minor and generally unimportant exception of Maine and Nebraska, who allocate their electors more proportionally.