What Happens if the House Picks the President

If no candidate gets 270 electoral votes, the House gets to choose a winner. It’s happened before.

AP Photo/Andrew Harnik
Daniel Newhauser
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Daniel Newhauser
April 11, 2016, 8:01 p.m.

It’s Jan. 20, 2017, and Hil­lary Clin­ton, for a mo­ment en­vi­sion­ing her­self stand­ing on the Cap­it­ol’s West Front tak­ing the oath of of­fice, in­stead ap­proaches a po­di­um at her Brook­lyn cam­paign headquar­ters to con­cede the pres­id­en­tial elec­tion.

Don­ald Trump, still fum­ing at his ouster from the Re­pub­lic­an tick­et at the GOP con­ven­tion, sits just miles away in his Man­hat­tan pent­house con­fer­ring with law­yers about wheth­er and how he can bring his third-party can­did­acy to power.

Mean­while in Hou­s­ton, Sen. Ted Cruz watches Clin­ton’s speech on tele­vi­sion, scrib­bling notes on a pad of pa­per that will even­tu­ally be­come his in­aug­ur­a­tion speech. Only hours ago, Speak­er Paul Ry­an an­nounced from the House rostrum that, after weeks of vot­ing, Cruz has been named pres­id­ent by a ma­jor­ity of the cham­ber’s state del­eg­a­tions.

Is this scen­ario far-fetched? Of course. But it is not un­pre­ced­en­ted.

The Con­sti­tu­tion grants the House power to name a pres­id­ent if no can­did­ate wins a ma­jor­ity of the coun­try’s elect­or­al votes. The last time this happened was in 1824, when John Quincy Adams emerged from a crowded field to be named pres­id­ent by the House over An­drew Jack­son, Henry Clay, and Wil­li­am H. Craw­ford.

It has also come close to hap­pen­ing since. The elec­tions of 1992 and 1980 could have been thrown in­to chaos had third-party can­did­ates Ross Perot and John An­der­son, re­spect­ively, won a few states while can­did­ates Bill Clin­ton and Ron­ald Re­agan won few­er. In 1968, Richard Nix­on won the pres­id­ency with only 301 elect­or­al votes, but George Wal­lace nearly ac­ted the spoil­er by win­ning five South­ern states.

Some ex­perts and his­tor­i­ans think there is an out­side chance that this is the year his­tory re­peats it­self.

“Soon­er or later it will even­tu­ally hap­pen. It’s been a long wait since 1824,” Uni­versity of Vir­gin­ia law pro­fess­or J. Gor­don Hylton said. “The most likely thing is that someone—Don­ald Trump, Bernie Sanders, Mike Bloomberg—someone would have to an­nounce a third-party can­did­acy and get on the bal­lots in at least some states and carry at least one state.”

Trump has in­deed flir­ted with the idea of run­ning as an in­de­pend­ent if he is denied the GOP nom­in­a­tion. If he goes in­to the Re­pub­lic­an Na­tion­al Con­ven­tion lead­ing in del­eg­ates, but Cruz or someone else emerges as the party nom­in­ee, Trump could be mo­tiv­ated to act on his threat.

Con­versely, the elec­tion could plunge in­to chaos if Trump wins the nom­in­a­tion, but is faced with a case of un­faith­ful elect­ors, or mem­bers of a state’s Elect­or­al Col­lege who de­cide they can­not in good con­science vote for him.

Former House his­tor­i­an Ray Smock said there is no law to pre­vent elect­ors from de­fect­ing from Trump, even if their state in­struc­ted them to vote for him—al­though be­ing os­tra­cized from their party may be mo­tiv­a­tion enough not to make waves.

“You do have some un­usu­al cir­cum­stances go­ing on, and prob­ably the thing that could up­set the apple cart in the Elect­or­al Col­lege—which is al­ways a pos­sib­il­ity—is if the elect­ors de­cide to not fol­low the in­struc­tions of their party or their state,” he said.

In the first scen­ario, it is not un­think­able that Trump as a third-party can­did­ate could cap­it­al­ize on his massive pop­ular­ity in the South and the Rust Belt and emerge in a gen­er­al elec­tion with a few states un­der his belt, so long as he could get on the bal­lot. In the second scen­ario, Trump as the GOP nom­in­ee could win many states, but a few could de­fect and vote for an­oth­er Re­pub­lic­an, per­haps Cruz. In either case, if Trump wins some states, but neither an­oth­er Re­pub­lic­an nor Demo­crat­ic nom­in­ee win 270 elect­or­al votes, the elec­tion would go to the newly elec­ted House.

Al­though it seems un­think­able to most, it is clear that at least some mem­bers of the House are pon­der­ing the scen­ario. Rep. Mick Mul­vaney, for in­stance, answered a Face­book ques­tion­er ask­ing why he is not a del­eg­ate by writ­ing that he wants to stay un­af­fili­ated in case the House is asked to de­cide.

“I have already de­cided NOT to try to be a del­eg­ate. I want to stay sort of neut­ral just in case the elec­tion goes to the House of Rep­res­ent­at­ives,” Mul­vaney wrote. “I just want to be able—in the RARE event that the elec­tion goes to the House—to be able to be an hon­est broker.”

Un­like a nor­mal roll call, the House vote would be a tally of the cham­ber’s state del­eg­a­tions, with each state rep­res­ent­ing one vote. That means Cali­for­nia’s 53 rep­res­ent­at­ives col­lect­ively have the same weight as Montana’s single con­gress­man. Right now, Re­pub­lic­ans hold a ma­jor­ity in 33 state del­eg­a­tions to the Demo­crats’ mere 14, with three tied. Since Re­pub­lic­ans are al­most uni­ver­sally favored to re­tain con­trol of the cham­ber, the res­ult of a House vote would most likely be a Re­pub­lic­an pres­id­ent, even if the Demo­crat­ic nom­in­ee won more elect­or­al votes.

That happened in 1824, ex­plained Ox­ford Uni­versity fel­low Don­ald Ratcliffe, au­thor of a new book on that elec­tion titled The One-Party Pres­id­en­tial Con­test. Jack­son won a plur­al­ity, but not a ma­jor­ity, of the Elect­or­al Col­lege. But after all was said and done, the House named Adams pres­id­ent.

Al­though that elec­tion pred­ated polit­ic­al parties as we know them today, Ratcliffe said the elec­tion was so close be­cause each can­did­ate rep­res­en­ted a clear con­stitu­ency: Adams, the ab­ol­i­tion­ists; Jack­son, the anti-Brit­ish; Clay, the pro­tec­tion­ists; and Craw­ford, much of the polit­ic­al es­tab­lish­ment. He com­pared that to this year’s elec­tion, in which Trump, Cruz, Clin­ton, and Bernie Sanders seem to be ap­peal­ing to very dif­fer­ent seg­ments of the pop­u­la­tion.

“Each of them is ap­peal­ing to a con­stitu­ency, and that con­stitu­ency gets more clearly defined as the elec­tion pro­cess goes on,” he said. “Each of them is rep­res­ent­ing a dif­fer­ent sort of bloc of opin­ion in the coun­try, not al­ways co­her­ent blocs, but defin­able.”

Smock, however, said that for all the dif­fer­ences on the Demo­crat­ic side, the party is much more stable than its coun­ter­parts. Bar­ring an in­dict­ment or some oth­er rev­el­a­tion that would make Clin­ton un­pal­at­able, Sanders will prob­ably en­dorse her if he loses the primary and vice versa. The same can­not be said for Re­pub­lic­ans, who have been fight­ing a close and in­creas­ingly per­son­al and bit­ter con­test.

Still, he gave less than a 10 per­cent chance to the idea that the elec­tion would go to the House.

“It would be a com­plete mess and I hope that doesn’t hap­pen, but it’s hard to pre­dict now how the con­ven­tions are go­ing to go,” he said. “We like to pre­tend our sys­tem works smoothly, and it usu­ally does, un­til someone throws a mon­key wrench in­to that sys­tem.”

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