Op/Ed

   

Now for those who found it distasteful that the 2000 Presidential election was essentially decided by the Supreme Court, just wait until 2008, when a strong possibility exists that the President will be elected by the United States House of Representatives.  But by a quirk in the United States Constitution, the decision will rest with a very small handful of absolute unknowns in Congress from non-swing states like Kansas, North Carolina, Tennessee and West Virginia.

 

Here is how it works. 

 

First, it appears that the major parties are going to nominate two New Yorkers for President.  So, let’s presume Hillary Clinton and Rudy Giuliani are the nominees.  Both are widely known; both will, by February 5 or 6, have nailed down their parties’ nominations and both have extremely high negatives in and out of their parties, making the time ripe for a serious, credible and extremely well-financed third party candidate: another New Yorker, Mike Bloomberg.  His ability to commit a billion dollars (or more) to the campaign instantly throws the entire race into turmoil.  “Safe” states, on both sides, will now become battlegrounds.  New York probably stays in Hillary’s column, as does California.  But the question marks abound.  Is Texas willing to vote for a gun-control, thrice-married, pro-life Giuliani?  Does rural Florida vote for that guy? Does Bloomberg’s entry into the race turn red states (like Missouri, Ohio and New Mexico blue?)  Can he, by sheer volume of radio, television and print ads, carry at least a few states?  Does Hillary hold on to Michigan if Bloomberg’s pro-jobs business record begins to resonate with disillusioned Mid-west voters?  Is Pennsylvania, a truly purple state, a Petri dish for a Third Party in the United States?

 

All Bloomberg needs is twenty or so electoral votes and none of the candidates get to the 271 necessary for a majority.  A billion dollars buys one big state and that throws the whole election into doubt. 

 

The Constitution states that:

 

 . . . if no person have such majority, 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 votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. (Italics added.)

 

Every now and again elections matter and 2006 may turn out to be the big one.  The reason this is important is that the Constitution says that the House shall “immediately” choose the President.  That means they vote in December of 2008, before the next Congressional Session starts.  In November of 2006, the Democrats took control of the House of Representatives for the first time in a dozen years.  In so doing, they also took a majority of the delegations in twenty-seven of the fifty states.  The remaining twenty three have Republican majorities.  However, twenty two states are majorities of just a single vote; seven of those are from “at large” states, which is addressed below.  Of the remaining fifteen, nine are Democratic majorities: Colorado, Illinois, Indiana, Iowa, Kansas, New Jersey, North Carolina, Tennessee and West Virginia.  On that list, only Illinois and New Jersey are traditionally Blue states.  Consequently, the Democratic House Delegations in the remaining seven historically Red states may be deciding the next President of the United States. 

 

The partisan bickering between Election Day and the actual vote tabulation in the House would be unbelievable.  But the House Democrats from these seven states would be under extraordinary pressure, both inside and outside their home states, to switch their votes to the other party. 

 

As it currently stands, there are fifteen states with Democratic majorities of two votes or more.  There are thirteen states with Republican majorities of two votes or more.  If each of those delegations votes along partisan lines, which is likely in those states because defections would have to be wholesale to change the result, Clinton is just eleven states shy of a majority.

 

There are seven “at large” members of the House of Representatives, i.e., a state whose population is so small it has only one Representative in the House: North Dakota, South Dakota, Vermont, Alaska, Delaware, Montana and Wyoming.  The first three are Democrats; the last four are Republicans.  Presuming these individuals vote along party lines, which is dicey, Hillary has eighteen votes to Rudy’s seventeen.  Now factor in the remaining states where either delegation holds a slim one vote majority and Hillary has twenty seven votes.  Of her twenty seven votes, however, twelve are by a single vote.

 

A flip of two of these House Democrats from twelve states (a total of fifty three Members) gives Rudy Giuliani twenty five States and there is a tie.  Is there any question that an appointment to Secretary of State or Defense or some other political plum could convince two (or three) people in the House of Representatives to switch sides?

 

Maybe Rudy wins.

 

Unless . . .

 

If there is a tie, the House continues to vote until someone wins.  But, if only two Members flip, there might not be a tie.  The District of Columbia ordinarily has no vote in the House of Representatives, but it does have Electors for the Presidency.  Here is what the Constitution says as to that:

 

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

 

The Twenty-Third Amendment was enacted to give Washingtonians a voice in the election of the President.  The language says that these electors shall be considered to be electors “appointed by a state.”  There is a solid argument to be made that by giving them the authority to “perform such duties as provided” by the Twelfth Amendment, these electors have the right to cast a ballot for President in the House of Representatives, to which they would be “entitled if it were a state . . .”  On the other hand, by depriving them of such a vote, Washingtonians would be completely disenfranchised from the vote for the President – an outcome clearly antithetical to the Constitution. 

 

Maybe Hillary wins.

 

Unless . . .

 

The Supreme Court decides that the Twenty-third Amendment really doesn’t mean that Washingtonians have a voice in the election of the President and that the Constitution can be twisted to completely disenfranchise the will of an entire group of voters by not counting their votes and that the nine people on the Supreme Court should choose the next President. 

 

Oh, wait.  That already happened.