The polls are showing a dead heat between President Barack Obama and Gov. Mitt Romney. But it’s conceivable that neither will take office in January. Here’s a possible scenario – a nightmare for the Democrats, and for conservative Republicans a dream come true.
It’s Jan. 20, 2013. Outgoing President Obama sits in the limousine on the way to the Capitol. To his right is incoming acting President Paul Ryan.
What? How did this happen? And what’s this business about “acting president”?
It started with the Electoral College. The election was close, as everyone knew it would be. President Obama got 253 electoral votes by carrying the Democratic base – the District of Columbia and 19 states that had gone for Gore, Kerry and Obama. He also took New Mexico (5 votes) and Colorado (9 votes), bringing him to 267 – heartbreakingly short of the 270 needed for victory. It looked like Mitt Romney had won with 29 states and 271 electoral votes, one more than he needed.
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But, on Dec. 17 when electors cast their votes, three Republican electors – one in Texas, Nevada and Iowa – did what they had told a reporter in September that they planned to do: They voted for the candidate to whom their hearts truly belonged: Rep. Ron Paul. No amount of persuading could get them to back down. The result: Romney 268 electoral votes, Obama: 267 and Paul: 3. No majority. No president-elect.
Under the 12th Amendment to the Constitution, if no one gets an electoral vote majority, the House of Representatives chooses the president from among the top three contenders. Each state gets one vote, and election requires a majority of states: 26 votes.
In the House elected in 2010, the GOP held a majority of seats from 33 of the 50 states, the Democrats had just 16, and one, Minnesota, was tied. But in the 2012 election the GOP lost several seats even though it kept control of the House. The Democrats gained in Colorado, Montana, Nevada and West Virginia, giving them “control” of 20 states, and also picked up one seat each in Arizona, Arkansas, Kentucky, New Hampshire and Wisconsin, bringing those states to a tie along with Minnesota. So the Republicans now controlled just 24 states.
The new Congress convened in January and officially counted the electoral votes for president and vice president. No presidential candidate had a majority, of course, but the three faithless Republican electors had joined the other 268 in voting for Paul Ryan for vice president, giving him the 271 votes he needed to defeat Joe Biden and become vice president-elect.
Meanwhile the House of Representatives set about balloting for president from among the three contenders, Romney, Obama and Paul. On ballot after ballot, 20 “Democratic” states voted for Obama and 24 “Republican” states voted for Romney. The six tied states deadlocked and cast no vote. Jan. 20 was approaching and, it seemed, there would soon be no president.
But, believe it or not, the 20th Amendment to the Constitution envisions such a possibility. It says, “If a president shall not have been chosen before the time fixed for the beginning of his term, or if the president elect shall have failed to qualify, then the vice president elect shall act as president until a president shall have qualified.” In other words, because the House couldn’t break the deadlock by Jan. 20, Vice President-elect Paul Ryan would become acting president.
This is where we are on Inauguration Day. President Obama and the soon-to-be acting president ride down Pennsylvania Avenue together, alight from the limousine and approach the platform where Chief Justice John Roberts administers the oath of office. Ryan gives an inaugural address focused on the wonders of our Constitution, the beauties of the marketplace and the need for a rebirth of American freedom. Barack Obama goes back to Chicago. The House keeps balloting but finally gives up.
And the three Ron Paul electors content themselves with the thought that the man closer to their philosophy than Mitt Romney ever really was is now in the White House, having completed the most astonishing rise in the history of national politics.
Likely? No. Possible? We’ll have to wait and see.
Schurin is an associate professor in residence in the Department of Political Science at the University of Connecticut.