(H/T – Ed Morrissey)
ABC News engages in some fantasy about how Speaker of the House Nancy Pelosi (D-CA) can maneuver herself into the Oval Office come January 20. Let’s more-fully explore this.
The first trigger in this series of events would be a failure of either John McCain or Barack Obama to get to 270 votes in the Electoral College as recognized by a joint session of Congress. The most-likely method is a “clean” 269-269 split, but it’s not the only one. There are also the possibilities of a “faithless elector” denying one or the other 270 electoral votes, and a third-party candidate getting at least 1 electoral vote.
I will briefly touch on the possibility that a sufficient number of challenges to the electoral votes in Congress exists to prevent a certification of all 538 electoral votes. That very-nearly happened in the 1876 election, with the final Congressional acceptance of the results (as judged by a special joint Congressional/Judicial commission) on March 2, 2 days prior to the expiration of the term of Ulysses S. Grant. 3 U.S.C. Sections 15-18 govern the counting of the electoral votes and resolution of challenges to same, and under the limits of debate and recess, Congress would be able to handle no fewer than 56 objections prior to noon on January 20.
At the point no candidate gets at least 270 electoral votes, the 12th Amendment provides that the House of Representatives chooses the President:
…The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and 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….
ABC News claims that the Democrats currently have a 26-21 advantage in this, with 3 states having evenly-divided delegations. They neglected to factor in the Democratic pick-up in Mississippi, which makes their advantage among the state delegations 27-21-2. That would suggest an Obama victory should it go to the House. However, it won’t be this Congress that will decide this; it will be the next one. I haven’t taken the time to evaluate the possibility of Republican pick-ups (or further losses) outside of Wisconsin’s 8th Congressional, which would make Wisconsin’s delegation evenly-divided if John Gard were to oust Steve Kagen, so I can’t evaluate whether there would no longer be a majority (vice a plurality) among the delegations.
Let’s say that the House deadlocks. The 20th Amendment provides that the Vice President elect would assume the duties until such time that a President qualifies. However, the same situations that would cause an Electoral College deadlock would likely cause it to not choose a Vice President elect, as the 12th Amendment further reads:
…The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed,…
In that case, the Senate would choose the Vice President under the authority of the 12th Amendment:
…(I)f no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice….
ABC presumes that the Senate could deadlock on this issue, with the line of succession as delimited by 3 U.S.C. Section 19 (under the authority of the 20th Amendment) giving the keys to the White House to Pelosi. Indeed, even though the Democrats have an absolute plurality of 49-49-2, and a working majority of 51-49, Joe Lieberman is unlikely to vote for Obama as he has endorsed John McCain. However, in addition to the fact that it won’t be this Congress doing the voting, there’s the “slight” matter of Article I, Section 3 of the Constitution – “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” As the Senate would be choosing between the top 2 vote-getters, and as the 111th Congress would be at the beginning of its term, essentially the only way for the Senate to not get a majority on its own is if they were evenly-divided at 50, which would give Dick Cheney the 101st and decisive vote.
Keep dreaming, ABC.