The 12th Amendment Delusion

By Susan Kuebler

Honest and sincere people are working extremely hard to deny either of the major political candidates, Trump or Clinton, the necessary 270 Electoral College votes (EVs) to win the presidential election outright. Their hope is that the House of Representatives, by invoking the 12th Amendment, would then choose a different candidate (their own obviously) as the next president. While noble in their intent, they are completely wrong. Following are the reasons why:

A candidate must win at least one state

The 12th Amendment provides that the House of Representatives, in the event that no candidate receives 270 EVs, must choose between the top three recipients of electoral votes for the office of President. The Senate will decide between the top three for the office of Vice President. In theory, there is one candidate, Evan McMullin, who has a chance to possibly win the state of Utah. Whether or not he is able to break out of third place with 20% of the polling is still a question to be answered. Even if he does win Utah with its six electoral votes, this will not necessarily be enough to deny either of the major candidates with needed 272 EVs.

The next Congress will decide who is President and Vice President.

At present, Republicans hold the majority in both the House of Representatives and the Senate. For Republicans, the down-ticket story is not encouraging. There is no “coattail effect” with Trump as the head of the ticket. In many cases, the opposite is true.   Paul Ryan, the Speaker of the House, was quoted this week as telling Republican candidates to look after themselves in terms of getting re-elected. In effect, he has given them permission to ignore or to go after Trump if that’s what it takes.  The Senate looks even shakier in terms of Republicans keeping their majority. So there is a possibility that the Republicans could lose both the House and the Senate.

Each state delegation receives 1 vote per delegation, regardless of size

That’s right folks. Wyoming will have as much say in who wins the presidency as say California, or New York, or Florida. Each state – one vote. The state delegations (both Democrats and Republicans) will cast ballots among themselves to decide how their state will vote. It’s not going to be the majority of representatives or senators who will select our next president and vice president, but a majority of the states. Under this scenario, there is nothing to prevent a Trump/Kaine election.

The reality of politics

On this, I can speak from personal experience. In my younger years I was a paid staff member on two Congressional and two Senatorial staffs (three Dems and one Rep). Do you know that members of Congress do on their first day in office? They start running for re-election. Those members of Congress are going to look long and hard at which candidate won their respective states. And they are not going to do what is morally or ethically right if it could cost them votes in their next election. They are going to do what is politically expedient. If Trump won the electoral college votes for their state, or even carried their district, the Republican congressmen are damn sure going to cast their ballot in their state delegation for Trump. The same goes for Hillary and the Democrats. Evan McMullin might, just might, get Utah.

What is truly frightening under this scenario, is that it is more than likely there will be more Republican delegations than Democrat, at least in the House.

A contested election ensures a Trump Presidency

There is a precedent for this situation. In the gubernatorial race in Georgia in 1966, the Republications chose a man named Bo Calloway as their candidate. He was a moderate with a half-way decent chance of winning. The Democrats held an open primary. They weren’t too concerned. Since the days of Reconstruction, whoever won the primary won the election. What they hadn’t counted on was Republicans voting in their primary to choose the man they felt would be the easiest one to beat. And the Republicans turned out in droves. They had the perfect man – Lester Maddox. At best he was considered a joke. At worst, and out-and-out racist. Lester Maddox became the Democrat candidate for Governor.

What nobody saw coming was a write-in campaign for a former Georgia Governor named Ellis Gibbs Arnall, a liberal Democrat, who ran as an Independent after losing in a runoff election against Maddox.  Although the Republican Calloway garnered the most votes in the general election, since he did not win an outright majority, thanks to Arnall, the election, by law, was decided by the Georgia General Assembly, which was dominated by Democrats. After considerable bitching and moaning, these politicians held their noses and voted straight down the Party line. There was, as I recall, only one dissenting vote from the newly elected Julian Bond. And that, my friends, is how Lester Maddox became the Governor of Georgia.

The parallels to the current arguments for sending the Presidential election to the House of Representatives are striking and disturbing. Yes, it can happen again.

As harsh as this may sound, seasoned political veterans and newcomers alike are not going to support Evan McMullin for president. He is not going to be the knight in shining armor saving the country from Trump or Hillary. They ARE going to put party before country. They’ve done it before. Why would you think they won’t do it again?   The same voters who supported Trump will be the ones who put them in office. To quote my friend James Chen, a constitutional scholar, “Any gamble that those members will resist their states’ voters, and especially their own constituents, to “follow their conscience” and vote for McMullin will be chimerical at best and nation-destroying at worst, as President Trump takes the oath of office two weeks after the 12th amendment showdown.”

The only way to ensure that Trump is not our next President is to vote for Hillary Clinton. Don’t think the 12th Amendment is somehow going to save us from Trump. It won’t. It will guarantee a Trump Presidency.

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