Sometimes it’s worth asking a QTWTAIN even when you know the answer
The ancient Greeks gave us many things. Democracy. Really long poems. The kebab*. Proof by contradiction. Let’s combine two of them now, in a manner of speaking, to look at where the US election might be going in the light of Donald Trump contracting Covid-19.
Everyone should be wishing Donald Trump well right now. Those who want him to win, for obvious reasons; those who want him to lose, because a Biden victory over a fit Trump who was campaigning until the end will have greater legitimacy; and all sides because it gets really messy if Trump should fall seriously ill or worse – and grisly though that scenario might be, it’s not one we can ignore so let’s take a walk through the darker parts of the US constitution and presidential election process.
One good reason for doing so it that it impacts on, for example, Betfair’s misleadingly-titled Next President market: it’s not settled on who the next president is but on the candidate that has the most projected Electoral College votes won at the 2020 presidential election (if a majority), or the 12th Amendment procedures (if not). But how do you project the ECVs if it’s unclear who the candidate is?
Anyway, back to the Greeks. Proof by contradiction starts with a statement we want to test; we then assume its logical opposite to be true; prove that the opposite results in a contradiction; and since the contradiction cannot be valid, the opposite-statement must be false and hence the statement being tested must be true.
In this case, let’s prove that Mitt Romney won’t be taking the inaugural oath on 20 January 2021. Why do this? After all, it’s hardly a contentious proposition. Well, because the path we need to take to get there is a good way to reveal the dusty mechanisms that might need cranking into action for real.
There are three ways in which you get to be inaugurated president. Firstly, win a majority of Electoral College votes. This has decided every election since at least 1876. Secondly, failing the first method, win the support of a majority of state delegations in the House of Representatives (and also finish in the top three in the Electoral College). Thirdly, in the event of the president-elect having died prior to inauguration, to be the next in line of succession. (Note – if the House fails to complete the second method in time, or if the president-elect is not qualified or is incapacitated, the next-in-line only serves as Acting President).
Why the ambiguity around that reference to 1876? Well, here we enter another grey area. In that election, the winning line was 185 ECVs. In uncontested votes, the Democrat, Samuel Tilden, won 184; the Republican, Rutherford Hayes, 165. But votes from four states were contested: intimidation, violence and vote-rigging resulted in rival slates of electors returning votes for their respective candidate. Ultimately, Hayes was elected due to the Republicans winning the political battle in Congress to determine which votes were valid – but that was no foregone conclusion.
The scenario of unclear results and contested Electoral College votes this year is not fanciful given claims of postal vote fraud and/or procedural abuse. Fortunately, there are now clearer procedures for dealing with disputed votes than there were in 1876 but even so, the potential for dispute and confusion exists.
One other point to note, so far. The constitution assumes that it will be possible to identify the top three in the Electoral College. It says nothing about what happens if there is a tie for third, as is entirely plausible in a two-party system with occasional faithless electors.
Indeed, let’s start our backwards walk with Congress – as there’s no way Romney could end up president through either other route: in almost every circumstance, almost every vote will go to people currently on the ballot paper, and Romney isn’t in the line of succession (he is a senator from the ruling party in the Senate but a long way from being President Pro Tempore).
To even get to a vote in Congress, you’d need no-one to win outright in the Electoral College. That would normally be highly unlikely. No third-party candidate has won a state since 1968 and faithless electors – those voting for someone other than the candidate they’re pledged to – are even rarer: the seven in 2016 (five against Clinton and two against Trump), produced the first time since 1808 that more than one Elector had voted against their pledged candidate.
There is one other much more plausible scenario, especially in the light of current developments. In 1872, the Democrat candidate, Horace Greeley, died between the popular vote and the Electoral College members voting. As it happened, what they did didn’t matter: Ulysses S Grant had already won a landslide victory for the Republicans.
In that case, most Democrat Electors cast their votes for alternative candidates though three still backed the deceased Greeley; these votes were rejected. These days, several states are stricter in their requirements: most require electors to vote as pledged, although that requirement is not always backed up by sanctions. Fourteen states, however, provide that any Elector who votes against pledge shall be replaced and their vote cancelled. I’ll admit I’ve not trawled these state laws in detail but the reality is that Trump’s name is the one on the ballot. There has to be a very real chance that Electors would be required to vote for someone who’d be ineligible and hence their votes would be annulled come the count.
Presumably, were Trump unable to serve, enough Electors would have backed Pence for him to at least make it through to the House, even if the scale of wasted Trump votes meant no candidate had a majority.
In fact, it’s not 100% certain that Trump’s votes would be cancelled. The 1872 precedent is relevant but not entirely binding. Congress could choose to validate the votes and let the presidential succession system deal with the problem of a victorious but deceased candidate (although the two Houses would have to do this separately and it has to be doubtful that they would if one or both were controlled by Democrats).
Does this matter for our hypothetical Romney candidacy? Well, yes. It’s here that the three-candidate rule becomes important if no-one wins outright. If Trump’s votes count, then the three candidates that would be put would be Trump / Pence / Biden, which then clearly becomes a straight Pence-Biden fight in the House. On the other hand, if they don’t count, then the candidates are Pence, Biden, and any nominee from a faithless elector – if any, or whoever has most, if more than one. (Note that Republican Electors couldn’t all vote for Trump in case all their votes were rejected and Biden won by default)
Crucially, the vote in the House is not taken individually (unlike any equivalent vote for VP in the Senate); the vote is taken by state delegations voting in blocks, for which a majority of states – i.e. 26 – is required. The problem there being not so much the risk of a 25-25 tie but that states which were internally tied (e.g. 8 Representatives, split 4-4), couldn’t cast any vote. The potential for deadlock is real.
Which is where a compromise candidate comes in, the most realistic option being the third candidate, if one exists and is acceptable to both sides. Maybe some Democrat Elector would cast a ballot for a more acceptable Republican on precisely that basis, should the election proper be thrown into confusion by Trump no longer being able to serve. It needn’t be Romney but for the sake of the example, he’ll do.
That’s the theory. The problem is that the maths don’t work.
For the election to be thrown to the House, the Republicans have to gain a majority of Electoral votes; otherwise, it’s just 1872 as above. That’s already looking very unlikely – Biden’s leads have been consistent through the year both across the nation and in the key states – and it would surely be even more so with a party in great confusion and robbed of its charismatic leader. But it also effectively requires the House to remain under Democrat control, as Democrat states are, by and large, bigger than Republican ones and otherwise there are enough Republican-controlled state delegations to form a majority. And there lies our proof by contradiction.
Even so, it really would be best all round if Trump could just get better.
* Well, not actually. But one does make an appearance in the Iliad.