Most of the concern over the independent presidential campaigns of Robert F. Kennedy Jr., Cornel West and the No Labels party has focused on the risk that they could draw votes away from President Biden and throw the 2024 election to Donald Trump. That’s understandable, given what happened in 2000 and 2016.
But there is another reason to fear these candidacies, and it’s right there in the Constitution: a contingent election decided by the House of Representatives, arguably the worst part of the Electoral College system.
Ask people who don’t like the Electoral College — that’s roughly two-thirds of Americans — and they will point to its occasional habit of awarding the presidency to the candidate who comes in second in the popular vote. This fundamental violation of majority rule has happened five times — in 1824, 1876, 1888, 2000 and 2016. It nearly happened in 2020 and threatens to do so again in 2024.
Don’t get me wrong: The wrong-winner scenario is unequivocally bad. Mr. Trump once called it “a disaster for a democracy,” before it delivered him to the White House. Yet it is not the most democratically offensive feature of the Electoral College. Few Americans are aware that under the Constitution, a candidate could lose the popular vote and the Electoral College and still become president. In fact, it’s already happened.
How? By taking the election completely away from the people and giving it to the House of Representatives. This may sound far-fetched, but it is alarmingly plausible at a moment when the major-party candidates are relatively unpopular. No Labels (which is also the No Candidate party at the moment) seems to think that a contingent election is an entirely viable path to the White House — which is true, since it is virtually impossible to imagine any third-party candidate winning the old-fashioned way. But the group seems willfully oblivious to the chaos and destabilization that contingent elections provoked in the past and undoubtedly would again, especially in such a tense and polarized political climate. It is, as the best-selling author James Michener put it in a 1969 book on the topic, “a time bomb lodged near the heart of the nation.”
The bomb goes off if an independent candidate like Mr. Kennedy manages to pick up a few electoral votes and prevents either of the two main candidates from winning an outright majority of electors (at least 270 out of 538). In that case, the American people no longer have a say in the biggest election in the land. Instead, under the 12th Amendment, the top three electoral vote getters advance to a second round, in which the House of Representatives “shall choose immediately, by ballot, the president. But” — and rarely in the history of democracy has a “but” been asked to do so much — “in choosing the president, the votes shall be taken by states, the representation from each state having one vote.”
Those votes in the past were decided by what a majority of a state’s delegation wanted, although the House can set different rules if it chooses. If the delegation is evenly divided, the state gets no vote. The point is, it doesn’t matter which party has more members in the House as a whole; all that matters is the happenstance of which party controls more state delegations. And right now Republicans control 26 state delegations and Democrats 22.
One vote per state, with the presidency in the balance. Stop for a moment and consider the absurdity of this. North Dakota, whose single representative in Congress represents about 779,000 people, would have as much say in choosing the nation’s leader as California’s 52 House members, who together represent almost 40 million people. The two Dakotas combined (fewer than 1.7 million people, about the population of Phoenix) would wield twice as much power as Texas, with 30 million people. This is about as far from the principle of majority rule as you can get.
The irony is that many founders expected this to be the standard way America would choose its presidents. As the plan took shape during the constitutional convention in 1787, Virginia’s George Mason predicted that the House would end up deciding 19 out of 20 elections. This wasn’t a bug in the system but a natural consequence of the lack of knowledge held by 18th-century Americans of politicians outside their home state. As a result, the thinking went, votes would be spread among a wide range of candidates, leaving most with some electors but none with a majority.
This sounded reasonable at the time, but as soon as it happened, in the wild tie election of 1800, it nearly collapsed the young nation, and the founders quickly realized what a bad idea it was. Congress rapidly passed the 12th Amendment to avoid a repeat. Thomas Jefferson, who prevailed that year, later wrote to a friend that the House-election provision was “the most dangerous blot in our Constitution, and one which some unlucky chance will some day hit.” He was proved right in 1824, when a four-way race for the White House prevented any of the candidates from winning an outright majority. Andrew Jackson led in electoral votes and popular votes, but the House picked the second-highest vote getter, John Quincy Adams. Jackson’s supporters were furious. They called it a corrupt bargain, and for good reason: Henry Clay, the speaker of the House and one of the other candidates in the race, hated Jackson and strong-armed lawmakers to vote for Adams, who later chose Clay for secretary of state.
The House has not decided a presidential election in the 200 years since, although it came close in 1968, during a tumultuous three-way race among Richard Nixon, Hubert Humphrey and George Wallace, the former Alabama governor who ran on the ultraright American Independent Party ticket. Nixon won but not before Wallace, an archsegregationist, captured 46 electoral votes in five Southern states.
Now imagine that in 2024, a No Labels candidate or even Mr. Kennedy or Mr. West is able to peel off a few electors in, say, Maine or Alaska, states that pride themselves on their independent streaks. (Maine awards its electors by congressional district, making it even easier to pick one off.) It’s not a simple task, given the varied and sometimes strict ballot-access rules in many states. Many fans of Mr. Kennedy and Mr. West may never get a chance to vote for them. Still, No Labels has managed to secure a spot on the ballot in 11 states, including key battlegrounds like Arizona and North Carolina.
Bottom line: It’s easy to assemble an electoral map in which no candidate reaches 270 electoral votes, sending the election to the House. That vote would not take place until early January 2025, after the newly elected Congress is seated, but even if Democrats regain a numerical majority in the House, Republicans are likely to hold and possibly expand their advantage in state delegations. In other words, assuming Mr. Trump is still a free man, he could be picked by the House to be the 47th president, even if Mr. Biden wins millions more popular votes and the most electoral votes.
It is reckless fantasy for a group like No Labels to inject more choices into a system that is not designed to handle them. That may sound like democracy in theory, but in practice it produces the opposite: a greater chance of a candidate winning with the support of only a minority. That’s all the more likely when the two major parties are as closely divided as they are today.
This isn’t an argument against more political parties. To the contrary, multiparty democracies can give voters a wider and healthier range of choices, better reflecting the diversity of the electorate.
A huge, diverse country like the United States should welcome reforms like a proportional election system — and, while we’re on the subject, the elimination of the Electoral College in favor of a national popular vote. Until then, the quixotic campaigns by today’s professed independents aren’t just futile; they’re dangerous.
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