Trump’s Only Hope Is the 12th Amendment, and He Knows It
Thanks to creative XVIIIth century legislating, Trump still has a chance to steal the election from the American people.
Let’s get it straight out of the way: the Electoral College is an anti-democratic institution created in the XVIIIth century by men who believed social class and skin colour determined one’s ability to think, act, and elect. As many have argued in the recent past, it should be abolished.
It should be noted that it was nearly abolished in 1970 when the amendment had bipartisan support, had it not been for a filibuster by Strom Thurmond and the Dixiecrats.
But it wasn’t, and for now, it is the process by which the US elects its President. As such, we must deal with its impracticalities and anachronisms, one of which being that the College is composed of 538 electors, an even number (it used to be 535 until DC got its 3 votes).
Now, to the core topic. The 12th Amendment was ratified in 1804, and it specifies the process by which a President is chosen should they not get the majority of the Electoral College votes (in cases of a tie or a three-way contest).
Should this happen, in January of the following year the President would be elected by the new House of Representatives, while the new Senate would elect the Vice-President.
The founding fathers being who they were, they had to think of a catch. If you thought the Electoral College skewed towards smaller states, you’re in for a treat!
The Electoral College fundamentally transfers the power of election from the people to the states. To the drafters of the 12th Amendment, this logic of state representation needed to remain. Therefore, should the Presidential election be decided by the House, each state delegation only gets one vote. One. Vote.
That’s right. California, with its 53 representatives, and Alaska, with its 1 representative, would have equal weights in the final decision.
And I’d wager that’s what Trump is currently banking on.
Indeed, the House might be held by the Democrats on a seat basis, but on a state basis, the GOP controls it. Moreover, split states (where an even number of reps are split 50/50 between the two parties) would end up in a deadlock situation, creating even more chaos and disruption at the top of the political system.
At this point, Trump knows he will not get the 270 Electoral College votes required to be elected. It is a mathematical certainty, even if he won all the as-of-yet-uncalled states.
He can, however, sow enough doubt and discord as to prevent state legislatures from certifying the results or worse, as to invalidate them. The Democrats would, of course, oppose this and push forward their Electors nonetheless. What would happen should a state send two lists of Electoral College votes to Washington with competing certifications?
According to the 12th Amendment, the President of the Senate shall receive the lists and count the votes. In other words, it could fall on Pence to ascertain the validity of the Electoral College votes he had received, even though this is not his prerogative. The issue might then be settled in the Supreme Court, and, well, we know where this is going…
If enough Biden Electors are invalidated, or if Trump succeeds in turning only 9 of them (at the moment) into faithless electors, neither Biden nor Trump would win a majority.
The election would therefore move to the House where the GOP would undoubtedly prevail, giving a second term to an impeached, twice-popular-vote-losing president.