Politics & Policy

Contingency

What if Congress Decides?

Alexander Hamilton raised his pistol to an angle that was sure to send its payload safely into the trees above the head of the man who called the duel. Aaron Burr was not as generous; he sent a deadly slug into his rival’s body. That most famous duel in American history may have started many years before in a presidential election that ended only after 36 ballots in the House of Representatives. To break the deadlock, Hamilton had urged his Federalist colleagues in the House to vote against Burr and for Jefferson, making the Virginian the third president of the United States.

New York Congressman Stephen Van Rensselaer prayed for divine guidance as he contemplated whom to support when the election of 1824 went to the House. Upon opening his eyes he spied a scrap of paper with John Quincy Adams’s name written on it. Van Rensselaer took it as a sign from God and so cast the deciding vote in his state delegation for Adams. With that vote Adams was elected president of the United States.

Could the House of Representatives be called upon to select the president this year? Since American politics has resolved itself into a strong two-party system, the chance of that happening has not been great. This year, however, there are numerous scenarios that could result in a 269-269 tie. Such an outcome would send the decision to the House of Representatives for the first time since 1824. What would happen then?

Under the current rules, the newly elected House will be empowered to make the decision. The representatives will take their seats on January 3 with the electoral vote to be counted on January 6. If the electoral vote is tied, the House will immediately move to select the president. Unlike normal legislative sessions, the House will dissolve itself into state delegations with each delegation getting just one equal vote. California will have no more representation than Delaware during this contingent election.

How would the delegations vote? Currently the House has 30 state delegations with a majority of Republican representatives, 15 delegations with a majority of Democrats, one delegation with a single independent representative, and four delegations with an even number of Democrats and Republicans. Due to the decline in competitive districts, it is very likely that the Republicans will continue to control a majority of delegations. The delegations from Illinois, Minnesota, or Nevada might enter the House on January 3 with new Democratic majorities, but the delegation from Texas is even more likely to enter with a new Republican majority, a scenario that would continue to yield more than 26 delegations with Republicans outnumbering Democrats. If these new delegations vote along party lines, Bush would win such a contingent election handily.

What if John Kerry, however, wins a majority in the national popular vote? Look for his partisans to launch a major campaign to bring public pressure to bear on House Republicans to do the “democratic thing” and elect the choice of the people. The pressure might be especially strong on majority Republican delegations from states where Kerry wins the popular vote, which could occur for Connecticut, Delaware, Florida, Illinois, Iowa, Michigan, New Mexico, Ohio, or Pennsylvania. Commentators will weigh in on the “illegitimacy” of a president elected by the House in modern America and will focus on Bush’s particular vulnerabilities because of the Supreme Court’s role in ending the recounts in 2000.

Who will choose the vice president? The Constitution provides for the Senate to choose the vice president if one candidate does not receive a majority of the electoral-college votes, but that might not happen even if the presidential candidates tie. An elector from West Virginia who is pledged to George W. Bush now says he might not vote for Bush. The elector seems to prefer Dick Cheney, opening up the possibility that he would vote for Cheney for vice president even if he did not support Bush for president. If the elector’s vote is decisive, we could see a situation where the House is empowered to choose the president, but the vice presidency is won outright by Cheney. Under such a scenario, one could envision a Cheney vice presidency serving under John Kerry as president. We have seen similarly odd pairings in American history, but we wonder if Cheney would agree to serve.

If Edwards and Cheney both fail to achieve 270 electors, the Senate, voting as individuals rather than delegations, will select the vice president. Republicans currently maintain a bare majority in the Senate, but that could change on November 2. With more than half a dozen races around the nation too close to call, either party could control the next Senate and hence choose the vice president. Will senators vote their party line? Will they vote to give the elected president his vice-presidential choice? Will they abandon partisanship and vote for the person they think most qualified to be president if that need should arise? Will they follow Stephen Van Rensselaer’s strategy and pray for guidance?

Despite Zell Miller’s having encouraged us to think anew the benefits of dueling, it’s not likely that this year’s election will end up fueling a duel like was sparked by that first contingency election of 1800. Still, as much as we all hope to the contrary, this election has the potential of stretching into January with the next president having only a few weeks or even days to manage the transition to power.

Gary L. Greg is director of the McConnell Center for Political Leadership at the University of Louisville. Laurie A. Rhodebeck is associate professor of politicalsScience at the University of Louisville.

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