A Primer for Understanding Some Possible Ramifications of the Upcoming Republican Party Crackup

As non-Trumplican Republicans panic at the prospect of a Donald Trump nomination, one of the options being explored  by ideological conservatives and "mainstream" Republican "moderates" is a third-party option. And a recent Huffington Post piece sets forth a generalized scenario, one which would rely on kicking the election to the House of Representatives when neither Trump nor Clinton nor Third-Party Independent Republican Candidate X secure a majority of the Electoral College.  But that piece does not lay out the very important specifics of the Constitutional requirements.

Here is how it would actually work.  The Electoral College votes for President will be counted in the House of Representatives on January 6, 2017 -- two weeks before the Constitutionally-mandated inauguration on January 20, 2017.  See the 20th Amendment to the Constitution.  The Electoral College votes for Vice President will be counted that day by the Senate, as well.  

In a hypothetical three-way race, let's say none of the tickets secures 270 Electoral Votes.  Under the 12th Amendment to the Constitution, if no candidate receives a majority of the Electoral Votes when counted by the House of Representatives, the House then immediately votes among the top three vote getters. Each state gets only one vote. The House votes until someone gets a majority of the states. And if a state House delegation cannot come to majority agreement, it cannot cast a vote. These wrinkles are important for several reasons.  

First, the Democrats, even if they do exceptionally well in the House elections in November 2016, cannot possible win a majority in a majority of states, since their support is more centered in the larger population states.  Most of the smaller population states are solidly Republican.  

But this is not the end of the analysis.  If, for example, a state is divided between Trumplican and Independent Republican loyalists (and Democrat or a few Democrats), then it may be unable to muster a majority to cast a vote at all.  Say a state has 9 Representatives: 2 Democrats, 4 Independent Republicans, and 3 Trumplicans.  That state could be paralyzed. Likewise a state delegation evenly divided between Trumplicans and Independent Republicans. So between states that have Democratic majorities, Trumplican majorities, Independent Republican majorities, and those which are deadlocked, none of the candidates could secure a majority. Indeed that could happen even if none of the delegations are deadlocked. So the likelihood that the House would not be able to elect a President is significant.

What would happen then?  Well, the 12th Amendment provides that if the House cannot make a selection, then the new Vice President shall be Acting President until the impasse is resolved. The Vice President is chosen by the Senate, and may only vote on the top 2 Electoral College vote recipients. There is no way to know who the top two would be, but given past experience and demographics, one of them is likely to be the Democrat. Who the non-Democratic choice would be would depend on whether the Trumplicans or the Independent Republican ticket did better in the Electoral College. 

And who would be in the Senate making the Vice Presidential selection?  Since Senators currently holding seats up for re-election in 2016 will have their terms expire on January 3, 2017, the new Senate -- which could be majority Democratic -- would make that selection.  And even if the new Senate were evenly divided, Joe Biden would still be Vice President, so he would break the tie.  Thus, there would be a very good chance, in this scenario, that the Acting President would be Julian Castro, or Sherrod Brown, or Tim Kaine, or Elizabeth Warren, or whoever else the Democratic VP nominee might be.  

So we could well have a Democratic Acting President on January 20, 2017.  

Ideology aside, that might not be a terrible result, since the Democratic ticket likely would have received a solid plurality of the popular vote.  (Abraham Lincoln was elected in 1980 with a 39% plurality of the popular vote).  But that likely would not be the end of the story.

The 20th Amendment provides that the "Vice President elect shall act as President until a President shall have qualified."   How long would the deadlock continue?  That, of course, would depend on who is in the House, and what kind of deals and compromises might be struck. It would make the Constitutional Crisis of 1801, when the Electoral College deadlocked between Thomas Jefferson and Aaron Burr due to a glitch in the pre-12 Amendment rules, look like a walk in the park.  That, history buffs will recall, was resolved when Alexander Hamilton threw his influence behind his ideological arch-enemy Jefferson because Hamilton viewed Burr as an unprincipled opportunist. He was probably correct; and it probably cost him his life a few years later when Burr killed him in a duel.

It might be as frightening as the Constitutional Crisis of 1877, when a controversy over the winner of the Electors in Oregon deadlocked the result, and there were threats of violent marches on Washington. That crisis was resolved by a sell-out of the recently freed slaves in the old Confederate States:  The Oregon Republican Electors were certified, in return for the commitment to withdraw federal troops from the South, thus ending Reconstruction and leaving the freed slaves to the tender mercies of the Ku Klux Klan.

Whatever the Republicans and Trumplicans do, this lesson in the Constitution and Presidential Election history is a further reminder of the responsibility the Democratic Party has to be unified and effective in the general election, and make this scenario irrelevant.