Friday, September 09, 2016

Year of the Tie-Breaker

The United States, I am reliably informed, will hold presidential and Congressional elections this year. The strong partisan alignment of the American electorate, the archaic structure of the American Constitution, and the contingencies of judicial mortality and Senatorial retirement have all produced the possibility of a cascading series of stalemates that would resolve themselves in the most partisan fashion possible. This possibility is slight but real; I suggest it more as a nightmare than a prediction. But consider:

The presidential election, as we were all reminded in 2000, is resolved not by popular vote but by the Electoral College. The winning candidate, which will almost certainly be Hillary Clinton or Donald Trump, needs a majority of EC votes (270). There is, however, a slight chance that the electorate will hand each major-party candidate the same number of Electoral College votes: 269. This will occur, for instance, if Secretary Clinton carries almost all of the states won by John Kerry* in 2004 - CA, CT, DE, DC, HI, IL, MA, MD, ME, MI, MN, NH, NJ, NY, OR, PA, RI, VT, WA – plus CO (Democratic-leaning), NM (solidly Democratic since the GOP’s white-supremacist turn), NV (potentially Democratic for the same reason), and VA, but loses Scott Walker’s WI to Trump.

In the event of an Electoral-College tie, Amendment XII provides that the U.S. House of Representatives select the president from the top three EC vote-recipients. Each state's House delegation receives a single vote in this election. While it is impossible to predict the composition of the new House of Representatives, Republicans currently dominate 33 of the 50 state delegations, and I find it unlikely that this will dramatically shift in the 2016 election. The new House of Representatives, in the event of an Electoral College tie, would almost certainly award the presidency to Donald Trump.

Democrats would, however, face an interesting scenario if they won a majority, or even a 50-50 split, in the U.S. Senate. A large number of Republican Senators are defending seats this year, and the GOP only has one likely pickup in that chamber (the seat of retiring NV Senator Harry Reid). Assuming the Democrats only lose the NV seat and pick up at least five Senate seats formerly held by Republicans, they would control the Senate during the organizational votes in early January 2017. (In case of a 50-50 split in the Senate, the Vice-President breaks ties; until 20 January that will be Joe Biden.) Democratic Senators could potentially, in case of an EC tie, elect Tim Kaine as Vice President. I think, however, that Republican Senators would probably refuse to show up for that vote altogether, and the Twelfth Amendment requires a two-thirds quorum (67 Senators) for a vice-presidential election. I am also fairly certain that our news media would blame Democrats for the ensuing vacancy (“Trump deserves his own VP choice!” “Trump/Pence carried 28 states!” etc.), and that enough Dems would break party ranks to make Mike Pence vice-president. I think they would do so even if this effectively handed control of the Senate chamber to the Republicans (50-50 split plus Pence’s vote). Perhaps the GOP would offer them some committee chairs and one or two of the nicer offices in the Senate Office Buildings in exchange for their treachery "reasonableness."

This brings me to a third stalemate: the one that has emerged in the U.S. Supreme Court. Antonin Scalia’s death earlier this year has given progressive Americans the hope of replacing him with a more liberal justice, and beginning to reverse the anti-labor, pro-corporate, authoritarian** agenda that the Court has pursued for over thirty years. The GOP-dominated Senate, however, has refused to allow President Obama to replace him, and a GOP-controlled Senate would almost certainly insist on allowing President Trump to replace Scalia with a like-minded (i.e. male, ultra-conservative, and a member of Opus Dei) jurist as soon as possible. A Democratic-controlled Senate might emulate Mitch McConnell and refuse to allow a vote on a Trump appointee, but a Senate split 50-50 with a Republican VP to break ties would almost certainly approve that appointee, and prohibit filibusters if the Dems tried one (just as the Democrats did with other court appointments in 2013).

Thus, a president chosen by the House of Representatives after a tie in the Electoral College could conceivably break a 4-4 tie between liberal and reactionary justices in the Supreme Court by appointing a justice with the consent of an evenly-split Senate whose president (the VP) would serve as tie-breaker. Isn’t that fun?

Fortunately, my Election Day predictions never come true, so I figured that I might as well come up with a crazy one. But maybe it’s not completely crazy. I don’t think an Electoral College tie is impossible, we’ve seen a 50-50 Senate split within the recent past (2000-01), and the Supreme Court is currently divided. And one of the two principal political parties in the United States is dedicated to the proposition that the federal government should not function unless it is completely in their control, so it easy enough to see them wriggling through any Constitutional rathole, or series of ratholes, that would let them take all three branches at once.

* An otherwise-weak candidate who carried all those states through sheer partisan loyalty – that, and widespread hatred of the incumbent.

** Giving the Devil his due, Scalia was notably anti-authoritarian when it came to upholding the Fourth Amendment.

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