There’s a fundamental truth about the highest office in the United States of America which has fallen into oblivion by habit: The President is elected by the states. Not the people. And that’s why this year’s election stands to become the most violently contested in modern history.
Have a look at the Constitution if you stare at these lines in disbelief: Art. II states clearly (and hasn’t been amended so far) that it’s up to the individual states’ legislatures to choose and instruct their members of the Electoral College at their discretion. In other words: It does not stipulate how the individual state legislatures are to choose their electors; it is only by tacit convention that they have arrived at doing so by popular vote – often to the extent where the names of the electors are not mentioned at all on a state’s ballots. Equally, they could at any time and even after Election Day choose electors contrary to the popular vote that legally has no more than consultative relevance. Indeed, there’s even modern precedent: Florida’s state legislature did just that in the hamstrung election back in 2000 when only judicial procedure forestalled the nomination of the Sunshine State’s electors in favour of George W. Bush.
Still, it all seems pretty far-fetched, you think? Think again. President Trump positively boasts his spiteful ignorance of convention. And the likelihood that this year’s election will end up hanging in the balance is rather elevated, anyway.
It is easy imaginable that in either Pennsylvania, Michigan, Wisconsin, or Florida or even in a combination of these a situation could arise where the popular vote becomes obscured by counting errors, missing ballots etc. Or the popular vote isn’t obscure at all – but still, President Trump ask his fellow Republicans in those states to nominate electors in his favour. And in all of these states the state legislatures are controlled by the Republicans.
But that is not where the matter might come to a close. Electors can be disputed and their votes nullified by Congress if both its houses vote to do so, after at least one member of each house has objected to a particular state’s electors for whatever reason.
If the Democrats come to control Congress this November, it is thus perfectly likely that the votes cast by electors chosen by Republican-controlled state legislatures in one or more of the swing states will ultimately be made void, resulting in a complete stalemate. For in that case, no candidate will have reached the mandatory majority of 270 votes in the Electoral College. What happens then?
In such a scenario, the Constitution is thrown into exception mode – because the states, for all their importance in the selection of a President and a Vice-President under normal circumstances, now lose their power to Congress.
Initially, the House of Representatives assembles to elect a President – by one vote per state delegation! It’s here that the stalemate might finally come to an end and the Presidency be delivered to Donald J. Trump by a majority of Republican dominated House delegations. If, however, the House fails to elect a President with the necessary majority of 26 state delegations or if ballots have to be postponed because the quorum of two-thirds of Representatives is not present, voting continues until the House settles on a President-elect.
So what if there’s no President-elect in time for the inauguration in late January? That’s where the Vice President-elect comes into play. If there’s a candidate for Vice President having secured a majority in the Electoral College, they become Acting President as long as it takes the House to elect a President. If, however, there’s even no Vice Presidential candidate having reached the necessary majority in the electoral college, there’s a contingent election for Vice President akin to that for President in Congress; this time around, however, in the Senate rather than the House. Here again, a candidate needs to win the majority of 100 Senators to become Vice President-elect and hence, should the House fail to elect a President until Inauguration Day, Acting President. If, finally, there’re neither a President- nor a Vice President-elect the day before inauguration, the Speaker of the House becomes Acting President – much the same procedure were both the President and Vice President to become incapacitated simultaneously to discharge their duties.
Now that we have worked through all this, imagine this simple scenario, step by step:
1) The election delivers a potential vote by the Electoral College along the lines shown on the map below (note that, hence, two states might very well become tiebreakers or makers in this election which are usually completely neglected: Nebraska and Maine with their unique, split selection of electors). That is, there’s either a tie or small majority for the Democratic candidate.
2) Donald Trump then asks fellow Republicans in the state legislatures of either Pennsylvania, Michigan, Wisconsin, or Florida or even all of them to ignore the “rigged” popular vote and choose electors in his favour, which in due course they do.
3) The Electoral College ultimately votes in favour of Donald Trump. But the day the votes are opened and read out in Congress, a Democratic Senator and a Democratic Representative from one or more of the states affected each (or indeed any other state) dispute one or more of the electors chosen by those Republican state legislatures against the popular vote. With Democrats in control of both the House and the Senate, Congress then votes to discard the votes of said electors, leaving no candidate for President (and hence most likely Vice-President also) with the necessary majority in the Electoral College.
4) The House of Representatives and the Senate then start voting to choose a President and Vice President-elect. The House becomes deadlocked since no party is in control of the majority of state delegations, while the Senate votes for the Democratic candidate for Vice President to become Vice President-elect.
5) On the eve of Inauguration Day, the House has still failed to elect a President. The Democratic Vice President-elect thus becomes Acting President until the House settles on a new President.
All told, particular attention should be paid to this year’s running mates of each party’s presidential candidates – because they might well end up leading the country for months and months of bitter and intense political infighting, and even acceding to the Presidency in their own right should the original candidates withdraw eventually.
What all this might mean for business and the economy? Difficult to tell now; but one thing should be certain: The greenback would suffer a mighty hit, while Treasury yields and stocks would fall precipitously. And thus late in the business cycle, it might even serve to give the kick-start to the often-anticipated-and-not-materialised recession. Politics has become a major source of risk for business over the past several years – and this year stands to become its climax.