Given how unusual this election season has been, the unexpected has almost become the expected. In this vein of thought, a valid question to consider is:
“What if no Presidential candidate receives enough Electoral College votes to be elected?” The Constitution answers this question for us.
While discussing the Electoral voting process, the 12th Amendment of the Constitution stipulates the following:
“..and if no persons have such a 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.
So, given current polling data, the House of Representatives would most likely have to choose between Hillary Clinton, Donald Trump and Gary Johnson.
The interesting twist is that if the election goes to the House of Representatives, each state will only have one vote. Here is what the Constitution says:
“But in choosing the President, the votes shall be taken by states, the representation from each state have 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 states shall be necessary to a choice.”
A strict interpretation of that part of the 12th Amendment would indicate that the District of Columbia, American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the Virgin Islands, would not have a vote even though they have congressional representatives.
Each state has to vote as a delegation. This raises the question as to what the current political makeup is for each state’s congressional delegation. The assumption being that the majority would cast the vote. Currently the makeup is as follows:
33 states have a Republican majority, 14 states have a Democratic majority and 3 states have an equal number of Democratic and Republican congressional representatives. Even if the Supreme Court ruled that the excluded representatives listed above got to vote, their votes would not change the Republican majority.
Given how unpredictable this election season has been, I am not certain that either party can rest assured that their states would vote the party line. That raises the following question:
“What would happen if the House of Representatives could not come up with a majority vote?” The answer from the Constitution is:
“And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.” So, Joe Biden would become the next President of the United States.
One last piece of election trivia for you:
There have been two Presidential elections in our country’s history where the House of Representatives chose the President. Thomas Jefferson in 1800 and John Quincy Adams in 1824.
If this information highlights anything, it highlights the importance that you should not assume that this election is a “done deal” and simply choose not to vote.
Steve Scranton is the Chief Investment Officer and Economist for Washington Trust Bank and is a CFA charter holder with over 30 years of investment experience with equities, tax-exempt and taxable fixed income securities. Steve actively participates on committees within the bank to help design strategies and policies related to client and bank owned investments. Steve also serves as the economist for the Bank and has been a featured speaker for both client and professional organization events throughout the Northwest.