President Lieberman? President Hastert?! Don’t laugh. It could happen if the Electoral College produces a tie.
President Strom Thurmond? Don’t laugh. The odds are against it, but there is an outside chance of constitutional meltdown in the days ahead. The problem is created by the Constitution’s archaic and confusing rules concerning the Electoral College and its intricate provisions concerning Oval Office vacancies.
Constitutionally, the key next Tuesday is not who wins the nationwide popular vote, but who wins the state-by-state electoral vote. Americans will pick 538 electors, and to win, a candidate needs an absolute majority: 270.
But what if Bush and Gore tie at 269 apiece? This is not a fanciful scenario. For example, imagine that Gore wins the following states where he seems clearly or slightly ahead today: California (54 electoral votes), New York (33), Florida (25), Pennsylvania (23), Illinois (22), Michigan (18), New Jersey (15), Massachusetts (12), Washington (11), Wisconsin (11), Maryland (10), Minnesota (10), Connecticut (8), Hawaii (4), Rhode Island (4), District of Columbia (3), Delaware (3), and Vermont (3). If Bush wins everywhere else, each man would have 269 electoral votes. Several other easily imaginable permutations could yield the same 269-269 tie.
In this event, our Constitution and statutes allow the race to be decided in the incoming House of Representatives. But in this vote, each state must vote as a bloc, and the winner must win an absolute majority of states–26 out of 50. Some state delegations, however, are likely to be evenly divided between Republicans and Democrats. If each of these delegations could cast a half vote for each man, then one candidate could likely emerge victorious. But the Constitution says that each state shall have “one vote” and says nothing about half votes. House rules and House precedents from the elections of 1800 and 1824 (the only times the House has picked the president), disallow half votes. Thus, divided delegations probably won’t count, and neither Bush nor Gore might be able to reach the magic number of 26.
So, what happens then? The presidency would appear to stand vacant after noon on Jan. 20. The Constitution says that the vice president should then take over. But who will be vice president after Jan. 20?
If Bush and Gore tie at 269, so will Cheney and Lieberman. In this event, the 12th Amendment provides that the Senate shall pick between them and that the winner must get an absolute majority–51 votes. Here, all bets are off. Imagine the scenarios:
President Lieberman? If the Democrats manage to win every tight race, the new Senate could be evenly split 50-50. The Senate’s presiding officer (until Jan. 20) is none other than Vice President Al Gore, and he could cast the tie-breaking vote for Lieberman. Lieberman might possibly be free to later nominate Gore as his vice president under the 25th Amendment and then step down once Gore was confirmed, though there are serious unresolved questions here.
President Cheney? If Republicans hold on to the Senate, then they could pick Cheney (who in turn might be able to eventually switch positions with Bush under the 25th Amendment).
President Hastert? If the Senate splits down the middle, it is not completely clear that the vice president may cast a tie-breaking vote under the 12th Amendment–arguably the amendment requires an absolute majority of senators, and technically Gore is not a senator. If neither side has 51 senators, federal succession laws could make the speaker of the House the acting president. Republican Dennis Hastert currently holds the speakership and will likely retain it if the Republicans keep control of the House in Tuesday’s congressional elections.
President Gephardt? If the Democrats win back the House on Tuesday, the new speaker might be Richard Gephardt rather than Dennis Hastert.
President Thurmond? If the House elections turn out to be very close, the House could be without a speaker at the beginning of the session. (This happened repeatedly in the 19th century.) Next in line under the succession law is the Senate’s president pro tem, the nonagenerian South Carolina Republican, Strom Thurmond. If Republicans win back the Senate, 51-49, Thurmond could conceivably, by declining to vote for Cheney and thus denying Cheney the needed 51 votes, crown himself king.
President Albright? The presidential succession laws currently in place probably violate the Constitution. Only “officers of the United States” may be picked as presidential successors, and senators and representatives are not such officers, properly speaking. The next person on the statutory succession list is the secretary of state, Madeleine Albright. Our first woman president!
But wait. Albright was not born in the United States, so she is ineligible. Next in line is secretary of the treasury Larry Summers.
There is a lesson in all this headspinning speculation: Our current systems of presidential selection and succession are a mess-various accidents and crises waiting to happen. Why not amend the Constitution and provide for direct popular election for all future presidential contests?
Related in Slate and on the Web
Emily Yoffe’s “Explainer” draws a bead on the Electoral College system. Jack Shafer’s “Press Box” explains why Bill Clinton can run for vice president. Click here for the 12th Amendment and here for the 25th Amendment.
Akhil Reed Amar is Southmayd Professor of Law at Yale Law School.