October 31, 2004

Nightmare Scenario
— Ace

What if the Electoral College splits 269-269 (it's actually quite possible; a lot of likely state splits will yield this result), and then the election is thrown into the House of Representatives?

No problem, you say. The Republicans control more state delegations and thus would elect Bush from the House in the event of a tie.

But that assumes that the Democrats don't refuse to come to Washington, DC, thus denying the House a lawful quorum. Which, based on the partisan hatred among leftists, and the previous gamesmanship in Texas, isn't too far-fetched.

What would happen? Would Hastert tell the Sergeant of Arms and the Federal Marshals to begin rounding up/arresting runaway Democrats and holding them prisoner in the well of the Congress?

Would the Supreme Court be forced to intervene-- again -- and make the controversial decision that, given a refusal to comply with Constitutional requirements, the normal rules of quorum are temporarily suspended?

Could the Democrats negotiate for some prize-- like a Democratic Vice-President, in exchange for their cooperation?

Posted by: Ace at 06:21 AM | Comments (10)
Post contains 175 words, total size 1 kb.

1 One or more individual electors could change their vote. That could either end the problem, or create it in the first place.

Posted by: David at October 31, 2004 06:26 AM (oiycO)

2 I think there is a limit to what the elected dems will do. Not the people, but the reps and senators. They do have some long sight. Passions of the people will wane. But they have to run for reelection and a republican running against a dem that refused to show up to vote on something like president of the usa is a hell of a campaign ad.

Posted by: Jennifer at October 31, 2004 06:34 AM (TFMd3)

3 Two months ago, I pointed out that it was the 23rd Amendment, giving D.C. its three electoral votes, that makes Electoral College ties possible. Before that, there had been an odd number of electors for a century or more, since the House of Representatives had had an odd number of members, no doubt to discourage ties in ordinary votes. (The Senate has the Vice President to break ties. The fact that the Constitution provides no such officer for the House suggests that the Founding Fathers envisioned an odd number there, though 19th-century reapportionments sometimes made the number even.)

Of course, with "faithless electors" (not to mention Swiss bank accounts) an odd-numbered Electoral College would be no guarantee of a quick or clear decision in a close vote, nor will an evenly-divided vote necessarily send the election to the House. But an odd number wouldn't hurt.

Posted by: Dr. Weevil at October 31, 2004 06:43 AM (1dY/Q)

D's not showing up likely not a problem: Constitution Article I:

Section. 5.
Clause 1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Posted by: Cephalus at October 31, 2004 06:52 AM (0/kT6)

5 There's also no way they could negotiate for a Democratic VP, since the VP is selected by the Senate, and the House would have no real way to control the Senate vote.

Posted by: Joe R. the Unabrewer at October 31, 2004 07:01 AM (Zr5Iq)

6 However, if Kerry won the popular vote, there would be tremendous pressure from the Democratic Party and the MSM on representatives to vote for a Kerry presidency. A Bush win in the House, under these circumstances, would draw the legitimacy of his presidency into even more question than the Florida vote in 2000, despite the fact that he would be constitutionally elected. (Voting in the House is by state delegation: 30 states currently have R majorities, 15 D majorities, 4 tied, one delegation has an independent)

Posted by: Cephalus at October 31, 2004 07:15 AM (0/kT6)

7 This not only happens for a tie, but also if one or more states is unable to declare a winner, and no one gets to the magic 270 number by the hard limit of Jan 3. So any situation that dismisses Ohio, PA or FL makes this and even more real possibility.

Once we hit that hard deadline, all of the votes get thrown out and the house gets determined by an obscure type of vote by the members of the house of Representatives.

The relevant portions of the Constitution and law that I have found are the 12th,20th,25th amendment and the presidential succession act of 1947 (as amended in 2002)

The statutes, although odd are pretty well laid out in the constitution . I wouldn’t expect the Supreme Court to overturn a rule that is plainly laid out in the constitution and hurts Bush. I think they would find that the framers expected tis to be a tough fight as they originally gave them until March to figure it out.
The relevant part of the 12’th that requires a 2/3 quarum in order for the vote to count:

;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--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, 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. 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.--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, and if 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.

On Jan 21st President Hastert will we sworn in as our Acting President.


Posted by: Rachmeg at October 31, 2004 07:25 AM (3aBoR)

8 "2/3s quorum"

" 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,"

This says that a qurorm is achieved when two thirds of the states have at least one member present, not that two-thirds of all members are present. So if the Dems walk, only those states with no GOP members count against the quorum.

Remember that after this desparate attempt, these Dems will then have to go back and work with the GOP majority to get their pork passed. (Then again, the 144 years ago the Dems were willing to start a war when an election result wasn't to their liking.)

Posted by: Raoul Ortega at October 31, 2004 08:31 AM (xuymE)

9 Please. For the love of God. Stop. Just what I need. ANOTHER nightmare scenario to ponder. As if the prospect of a Kerry presidency isn't enough of a nightmare on it's own.

Posted by: Bloghorn Bleghorn at October 31, 2004 09:13 AM (MIffx)

10 Given the contingency that the EC does not work and the election is thrown into the House of Representatives, and then the Democrats decide to not show up, denying that body a quorum:

How many Democrats were AWOL when Congress started session in 1861 or 1865 when Mr. Lincoln was (re)elected? I seem to recall from the history books that a sizeable portion of the country did not participate back then.

Methinks that enough congressmen can be rounded up to form a quorum, or perhaps those present can vote a rules change redefining a quorum. We have a precedent in that unpleasantness of Mr. Lincoln's time that could provide some guidance.

Posted by: steve poling at October 31, 2004 06:53 PM (mfVpc)

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