Consider this possibility: We wake up November 9th, 2016 and there is no clear majority of electoral votes between Clinton and Trump. The spoiler, late to the game Libertarian Gary Johnson has taken 5% of the vote, 27 electors. Clinton has 256, Trump 255. But 270 is needed to win. What then? This election is going to be decided in the House of Representatives.
Article II Section II of the United States Constitution specifies in this situation, as modified by the Twelfth Amendment, that the House of Representatives, each state having one vote, shall “chuse” the President from the three highest vote holders, and “chuse” the Vice President from the second highest vote holders. If the House cannot decide the Vice President, the Senate decides.
What does 2016 look like in this event? I mean look at this map of how the congressional districts line up presently.
John Anderson took 7% of the vote in 1980. Theodore Roosevelt took 27% in 1912. But the winners there recovered the full majority of electors. What if some wildcat states buy into the Libertarian message plus a general disgust with what the two party systems have produced?
Maine and Nebraska have a winner take all approach, so there is 9 electoral votes right there. Add in a few here and there, and by golly we got ourselves a genuine resort to the Constitution to deal with this mess.
In 1796 the election ultimately did land in the House of Representatives, John Adams taking the Presidency and Thomas Jefferson being named Vice President.
This set up a particularly nasty election of 1800 between the two friends and comrades in the American Revolution. As it turned out Jefferson and his Vice Presidential running mate, Aaron Burr, received the same number of votes, landing that election in the House of Representatives too. After 36 ballots the House chose Jefferson, and Burr was chosen for the vice presidential spot and therefore obscurity other than slaying Alexander Hamilton in a duel in 1804.
Lets hope this years election doesn’t come to such gun play.