The outcome of the wildest presidential election in our lifetimes will likely boil down to the rules in our rule book: the U.S. Constitution. There may be more surprises ahead, but the framers prepared us for almost any contingency. Look for electors going rogue, an Electoral College deadlock, or contested voting results like Florida in 2000. There’s even a bizarre possibility of a Trump-Kaine administration. Here’s what to watch for:
Can the winner of the popular vote lose? You bet. That’s happened four times before, most recently when Al Gore won the popular vote by 540,000 in 2000. The Electoral College — a body set up by the framers — actually chooses the president. Each state gets a number of electors equal to its representation in the House and Senate combined. So New York with 27 congressional seats has 29 electors, but tiny New Hampshire has only four. Electors are expected to vote for their state’s popular vote winner.
Even if Hillary Clinton racks up huge margins in Illinois, New York and other states with lots of urban voters, Donald Trump could still eke out an electoral college win because of his following in many less populous states. That’s by design. The framers wanted to ensure that the president-elect has support from all parts of the nation.
Late-breaking surprises are possible right up to Jan. 6. That’s the day Congress meets to count the electoral votes. It’s generally just mechanical. But there could be shockers this time.
Pay attention to maverick electors. Generally, electors are party loyalists and big donors who regard the task as ceremonial. But nothing in the U.S. Constitution or federal law prevents them from defying the popular vote in their state. Some state laws bar defiance, but those laws are constitutionally suspect.
In our nation’s history, 85 electors have defied voters and gone with conscience instead. This time around, a Washington State Democratic elector — with strong feelings for Bernie Sanders — has already announced that he won’t cast his vote for Hillary Clinton if she wins his state. He says Clinton is a “criminal” and “she will not get my vote, period.” A second Washington State Democratic elector says he hasn’t ruled out going rogue.
In past elections, errant electors haven’t changed history, but with disaffection for the candidates rampant among the party faithful, and Clinton and Trump neck in neck in battleground states, all bets are off.
An Electoral College deadlock is possible. To win, a candidate must get 270 electoral votes — a majority of the nation’s 538 total. The race is so close, it’s possible Clinton and Trump could tie at 269. In that case, the Constitution says the House of Representatives chooses the president, with each state having one vote, and the Senate chooses the vice president. The House is likely to stay Republican after the election, guaranteeing Trump a big advantage.
No one knows which party will control the new Senate that will convene in January, just in time to resolve the deadlock. If it still has a Republican majority, Pence would be chosen. But if Democrats win Senate control, Tim Kaine would be their pick. Voila! A Trump-Kaine administration. They’d get along about as well as Cain and Abel.
Will the Supreme Court decide the election? Democrats and Republicans are already lawyering up, laying the groundwork for possible challenges to the popular vote in states such as Ohio and Pennsylvania. Just like Bush v. Gore, this election could land in the Supreme Court. With only eight justices, a deadlock there is possible. But hold on. Justice Ruth Bader Ginsburg may have to recuse herself due to her disparaging comments about Trump last July.
The framers anticipated politics would always be tumultuous and, yes, corrupt. Thanks to the rules they devised and Americans have respected ever since, the nation has survived 57 presidential contests. We’ll get through this one, too.
Betsy McCaughey is author of “Government by Choice: Inventing the United States Constitution.” To find out more about Betsy McCaughey and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.
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