Who's Afraid of the Twelfth Amendment?

September 13, 2008 11:31 AM

The Twelfth Amendment of the U.S. Constitution has serviced the two-party system since 1804, but not without controversy. Little known about Amendment XII is that it requires an absolute majority of over half of the electoral college to win, currently 270 out of 538. If not, as in the case of third party state victories, or a tie of 269 each, the House of Representatives then selects the president from the top three contenders, with each state delegation having only one vote (also requiring a majority). Here's what the selection might look like today, advantage Democrats. However, it is the newly elected House that gets to decide the issue by the following March 4th (with the current VP ascending by default of indecision).
posted by Brian B. (25 comments total)

I really doubt we'll be seeing those provisions kick in. There aren't any third parties in play that look like they'll be able to pick up a single EC vote, and absent that either Obama or McCain will get 270+ EC votes.

It'd take a very tight race between the two major party candidates *and* a third party taking at least one EC vote. Currently no states split their EC vote, which means our hypothetical third party would need to get >50% of the popular vote in at least one state.

Even if Ron Paul ran as an independent candidate I doubt he could swing a single EC vote, and he's the biggest vote getter outside the major parties. Ralph Nader is a spent force, he got 0.34% of the national vote in '04 and looks to do worse this election. Paul had the potential to be this election's Perot, the moment has passed. Even if he started campaigning today its rather late in the cycle for him to get any traction.

It'd be damn interesting if things did go that way, but it looks unlikely to the point of being impossible.
posted by sotonohito at 12:10 PM on September 13, 2008

sotonohito: It'd take a very tight race between the two major party candidates *and* a third party taking at least one EC vote.

What about a 269-269 tie in the electoral college?
posted by Doofus Magoo at 12:24 PM on September 13, 2008

... oh, and Maine and Nebraska both (potentially) could split their electoral votes. Plus, there's always the (admittedly exceedingly unlikely) possibility of faithless electorals.
posted by Doofus Magoo at 12:25 PM on September 13, 2008

Ross Perot got 18.9% of the popular vote in 1992, but not a single EC.

George Wallace ran in 1968 as the American Independent Party candidate and carried five southern states. Not sure how many EC votes that amounted to but I think it was about 30 or 40 - more than enough to cause a real mess had Nixon not walked away with 300 and something...

The point is that third-party candidates can screw up the electoral college system, but only if they are able to carry entire states. That hasn't been likely since Wallace's '68 run. Depending upon how you squint at it, Perot's run either represents that the system works (i.e. disenfranchises third party candidates) or that any whacko with a lot of money can potentially screw with the EC.

Two things are for sure:

1.) The winner-take-all system makes it nearly impossible for third parties to run and win. This isn't a point of contention - it's a well studied mechanism of our government. Winner take all systems result in two party structures, proportional elections result in coalition governments.

2.) The EC isn't going away anytime soon because it would a.) take a constitutional amendment, and b.) individual states have too much to loose. The EC greatly benefits the economies of "swing states" - just look at the amount of money McCain and Obama are dumping into places like Colorado, Ohio, Virginia, etc...
posted by wfrgms at 12:38 PM on September 13, 2008

I would add that the twelfth amendment failed to decide the Bush Gore race, which is what it attempts to address, so reform is necessary if for no other reason. I also think that going to a simple majority nationwide popular vote would defy all predictions and increase voter turnout dramatically, because right now so many people do not vote for president because they believe it doesn't matter unless they live in a swing state. It would also open the door to other voting options by first dumping the EC. Tinkering with the electoral college seems to be missing the point, and all those reasons for keeping it are mostly fallacious.
posted by Brian B. at 12:50 PM on September 13, 2008

It's conceivable (although highly unlikely) that Obama and McCain could tie in the electoral college. The most plausible way for that to happen would be for Obama to hold all the Kerry states except New Hampshire while flipping Iowa, New Mexico, and Colorado.
posted by EarBucket at 1:24 PM on September 13, 2008

Doofus Magoo: "What about a 269-269 tie in the electoral college?"

Nate Silver's electoral projections site FiveThirtyEight.com runs 10,000 daily simulations of the general election; out of those 10,000, only 117 (or 1.17%) resulted in an electoral college tie.
posted by Rhaomi at 1:29 PM on September 13, 2008

If the electoral college is lost, I'll leave the US, seriously. I actually wish state elections would adopt an electoral college system.
posted by unpoppy at 1:37 PM on September 13, 2008

unpoppy Can you elaborate your position?

I've always been in the camp arguing that the EC is one of the worst aspects of our system, I've always seen it as a) a bit of remnant aristocracy (much like the bit about the Senate not being directly elected), and b) a horrible kludge to get around the fact that 1790's communication difficulties would make direct election logistically difficult.

Can you either point me to sites that explain the attraction the EC holds for you, or take the time to enter a brief summary here if you don't know of any sites offhand?
posted by sotonohito at 2:46 PM on September 13, 2008

The National Popular Vote is a proposed multi-state compact designed to create a popular vote mechanism for electing the President, without replacing the electoral college. The way it works: states agree to give their electoral votes to the nationwide popular vote winner. I really hope this comes to pass, because the electoral college is fundamentally unfair, as it awards more weight to votes based on location - it's not one person one vote.
posted by thewittyname at 2:50 PM on September 13, 2008

Doofus Magoo Well, it hasn't happened yet. Admittedly we've only gone through this 42 times yet, but if ties were very likely we'd likely have had at least one. We've had a few three way contests that denied anyone a clear EC majority, but that's a different thing than a two way tie. Most people put the odds of a tie this time around at around 1%.

The truth, however, is that I didn't bother considering a 269-269 split because I'd totally screwed up and have, for several years now, been working on the false assumption that we had an odd number of EC votes and that therefore a tie was outright impossible absent a third party. Rather embarrassing for a political geek. For whatever reason I kept thinking 539 EC votes not 538.
posted by sotonohito at 2:52 PM on September 13, 2008

It seems like everyone could be a lot happier if all the states proportionately split their electors based on statewide popular vote: This way there's no winner-take-all system that disenfranchises voters, but smaller-population states still have disproportionate influence over the election, because the general is decided by electors, not overall popular vote.
posted by shakespeherian at 3:07 PM on September 13, 2008

Nate Silver's electoral projections site FiveThirtyEight.com runs 10,000 daily simulations of the general election; out of those 10,000, only 117 (or 1.17%) resulted in an electoral college tie.

The odds would skyrocket if more states split their electoral votes, giving smaller units to factor. One reason to not go that route.
posted by Brian B. at 3:25 PM on September 13, 2008

...the electoral college is fundamentally unfair

We are not and never have been a direct democracy. Majority rule is almost never "fair." Just because Al Gore got more votes than GWB doesn't mean the electoral college is a conspiracy to hold down the common man. It serves a purpose, and it does it well enough. It would be preferable if it did not require an absolute majority, but that's the limit to the scope in which I'd modify the current system (at the federal level).

If you want a better representation of the popular vote, convince your state legislature to change the way electors are selected.

To me the anti-EC movement is another example of a desire to concentrate power in the hands of the federal bureaucracy.
posted by polyhedron at 3:25 PM on September 13, 2008

I don't understand how the National Popular Vote scheme could work if small states opposed it. Couldn't they just refuse to tell the rest of the country what their popular vote totals were? Their only obligation under the current system is to choose some electors... technically, they don't even have to hold an election, do they? Aren't the state legislatures in charge of passing out electors?
posted by damehex at 3:29 PM on September 13, 2008

shakespeherian Well, I wouldn't be happy because such a system would *still* insist that people in, say, South Dakota are deserving of a bigger political voice than I am. The entire concept of disproportionate representation is from my POV, a great evil.

The Jeffersonian idea of an agrarian paradise, where cities are cesspools of immorality and must, therefore, be kept down by assigning them less representation than the noble and morally upright farmers get is what keeps America from being the good place its always pretended to be.
posted by sotonohito at 3:55 PM on September 13, 2008 [2 favorites]

Homer: America, take a good look at your beloved candidates. They're nothing but hideous space reptiles. [unmasks them]
[audience gasps in terror]
Kodos: It's true, we are aliens. But what are you going to do about it? It's a two-party system; You have to vote for one of us.
[murmurs]
Man1: He's right, this is a two-party system.
Man2: Well, I believe I'll vote for a third-party candidate.
Kang: Go ahead, throw your vote away.
[Kang and Kodos laugh out loud]
posted by blue_beetle at 4:24 PM on September 13, 2008 [1 favorite]

Sotonohito: Except that in the Jeffersonian idea of an agrarian paradise, the president has powers comparable to the Queen of England.

The idea was to have a state-proportional senate (that is, rural-biased) and a people-proportional house (urban-biased) so that the two would mostly deadlock each other, and no one would be able to impose over each other, unless it was a national consensus. Also, he was a strict constitutionalist and states-rightist - even if somehow the houses reached a consensus, there wasn't much that they could do. He topped this with an even more figurative president. Washington was the first, as a victorious general is quite fit for a figurative post - and then even drawing straws would have been good enough to select the next. One vote for each congressman per state was simple enough (imagine the trouble of having a popular national election in the 1700s) and kept everyone happy.

In a strict Jeffersonian republic (Remember I'm not talking about what he liked, I'm talking about what he defended - think ACLU defending racist free speech), the rural states could be whatever idyllic agrarian paradise they wanted, and New York could still be whatever cesspool of corruption they wanted.

What screwed over the Jeffersonian republic wasn't his views, or the particular president-picking method. What screwed him was his (and the country's) inexperience - noone knew how much power the federal executive needed, the view was just "the federal executive shall figure out how much power it needs", which worked for the Jeffersonian view as long as Jeffersonians were in power... once both parties (Jacksonians and Federalists) decided they needed more power, the shit hit the fan, and any inadequacy in the representation was exacerbated (I'd say there's NO good method to choose someone to have Bush-like powers... remember, the majority chose him in 2004)
posted by qvantamon at 7:15 PM on September 13, 2008 [2 favorites]

Also, this is the ultimate fear tactics - Don't vote third party, or there's a small chance Cheney might be president!

Got me scared.
posted by qvantamon at 7:18 PM on September 13, 2008

We are not and never have been a direct democracy. Majority rule is almost never "fair." Just because Al Gore got more votes than GWB doesn't mean the electoral college is a conspiracy to hold down the common man. It serves a purpose, and it does it well enough. It would be preferable if it did not require an absolute majority, but that's the limit to the scope in which I'd modify the current system (at the federal level).

If you want a better representation of the popular vote, convince your state legislature to change the way electors are selected.

To me the anti-EC movement is another example of a desire to concentrate power in the hands of the federal bureaucracy.

Let me take a couple of these crazy things you say in turn:

1) "Conspiracy to hold down the common man" - First, I don't see where anyone here suggested the EC was such a thing, but let's think about this a little more. What exactly do you think the purpose of the EC is? If you think it's to allow more level-headed decision-makers than the populace at large a kind of fail-safe control over election outcomes (it's not, but if it were...), then why not just dispense with the hollow formality of popular elections completely? If popular elections start consistently yielding results that don't jive with the EC results, then the purpose of the elaborate dog-and-pony show of popular elections (which, as you've asserted, is more symbolic than anything) is no longer being served (presumably, under this scenario, its purpose is to make voters feel satisfied enough with the election outcome to avert potential popular resistance), and in fact, the obvious disconnect between the popular results and the actual outcomes will only become an increasing source of popular unrest and political tension over time.

2) "...have never been a direct democracy..." - Right. It's always been a representative democracy. That doesn't mean there's ever been any legitimate argument that democratically-elected representatives shouldn't respect popular will. Representative democracies weren't devised as an alternative to direct democracy for theoretical reasons--direct democracy just hasn't been a practical option for most of human history. Communication and transportation restrictions stemming from technological limitations had more to do with the advent of representative democracy than any of these crazy ideas many folks seem all too eager to spout lately about what a democratic republic is or isn't (the roots of the words themselves translate to "thing of the people" + "popular government"). There is no ambiguity on this point, save among the ranks of those throughout history who've plotted in various ways large and small to undermine the idea of democracy: Whatever its specific form, a democratic republic is meant to reflect the will of its people. No ifs, ands, or buts: A democratic republic means popular rule. Not mob rule--that's why we have elaborate legislative processes (what you ignorantly dismiss as "Federal Bureaucracy") that curtail hasty decision-making--but it's popular rule all the same.

3) "...the anti-EC movement is another example of a desire to concentrate power in the hands of the federal bureaucracy." - Please explain what kind of contortions your thought-processes are doing to reach this conclusion. Seriously: can you diagram this tortured argument for me? How could eliminating a massive layer of election bureaucracy with features that serve as ready-made tools for well-placed technocrats hoping to concentrate government power possibly lead to the results you're suggesting? Is that Nazi meth you're cooking or what?

Now, there are other better arguments for keeping the electoral college. In fact, I think keeping some form of the electoral college, but eliminating election precinct gerrymandering and apportioning electoral votes proportionally might go a long way to solving the current problems. But all that stuff about the EC being necessary to our cherished form of representative democracy--spare me. Let the legislators elect the president then. There are lots of ways to do representative democracy. The goal is always supposed to be to make election outcomes reflect popular opinion.
posted by saulgoodman at 8:41 PM on September 13, 2008 [3 favorites]

Just cause something is called a college doesn't mean it is highly intelligent.
posted by Bitter soylent at 5:13 AM on September 14, 2008

I think the easiest way to effectively challenge a dangerous, obstinate, and flawed presidential election system is for a renegade swing state to award their electors based on the national popular outcome, winner take all. No state compacts required for this one. This prevents another 2000 Florida-type recount problem in their state, which seems to be the biggest threat. It also lowers any vote corruption within the state, which is not a small thing in the electronic age. It may also reduce any chance of an electoral tie, because of the decisive effect it would have in a close race at the end.
posted by Brian B. at 11:55 AM on September 14, 2008

Just to clarify, I wasn't suggesting that an Electoral College tie was likely this election. I was just pointing out that it wouldn't necessarily require a viable third-party candidate to happen.
posted by Doofus Magoo at 12:05 PM on September 14, 2008

It's conceivable (although highly unlikely) that Obama and McCain could tie in the electoral college. The most plausible way for that to happen would be for Obama to hold all the Kerry states except New Hampshire while flipping Iowa, New Mexico, and Colorado.

It would also happen if Obama gets all Kerry states and flips Iowa, New Mexico and Nevada. This is even more likely in my view.
posted by spaltavian at 2:18 PM on September 14, 2008

Also, if there is a tie, the Congress may have until March, but they would almost certainly decide by January 20th so the new president can be sworn in.

If not, Cheney wouldn't become VP, his term would end on Jan 20 just like Bush's. The Speaker of the House would become president until the House selected the president.

(The Senate would select the VP, so if they selected before the House, the new VP would become president until the House decided.)
posted by spaltavian at 2:25 PM on September 14, 2008