The Romney-Biden Ticket

If the election is as close as it looks right now, do we have the possibility for a tie in the Electoral College? Or disputed electoral votes, a la Florida in the 2000 or 1876 elections?

If so, then the 12th Amendment to the Constitution will come into effect. That requires that the House of Representatives chooses the President. If Republicans keep their House majority, as projected, Romney should win. But the 12th Amendment contains an interesting wrinkle — it requires voting by state delegation, with each state having a single vote (just like the good old Articles of Confederation).  Given the current composition of the House, Romney would still win by state delegations.

It gets more interesting with the vice presidency, however. The Senate picks the VP, with each Senator having a single vote. If Democrats keep the Senate, which is up for grabs but seems to be leaning Democrat, then Joe Biden could continue as Vice President. It would be interesting to see whether, if the Republicans can gain enough seats for a tie in the Senate, Biden would end up getting to cast the deciding vote for himself.

Now the honorable thing, I think, for Biden to do in this case would be to refuse to be a candidate and allow Ryan to serve as Romney’s number two. I believe that Al Gore’s finest moment as a public servant was when he refused to contest Florida’s electoral votes during the 12th Amendment process after the 2000 elections. But Joe Biden might think he is worthy enough to be the next Thomas Jefferson, who served as vice president despite coming from the party opposite the President — indeed, it was his election as vice president (because he came in second  to John Adams in the presidential election of 1796) that identified the need for the 12th Amendment (well, that plus that pesky Aaron Burr almost winning in 1800 against his own presidential candidate, but Biden hasn’t reached Burr levels of ambition — yet).

One additional thought — both chambers have quorum requirements of 2/3rds.  If that number is right, the Republicans can force a quorum for selection of the President. But in the Senate, the Republicans could deny the Democrats a quorum for picking the vice president. I’m not sure what happens then. I suppose the office remains vacant, and then, under the 25th Amendment, President Romney would nominate a candidate who would be approved by the House and Senate (as with Gerald Ford replacing Spiro Agnew).

I suppose that would allow Ryan to still become vice president, but not if the Democrats are so mad at the Republicans for denying Biden the quorum needed that they refuse to confirm Ryan.

  1. Schrodinger

    The odds of an actual tie in the EC are very small, even if the popular vote is close. I don’t think a 2000 type election is in the cards. One of the two will win the EC vote and the popular vote.

  2. Spin

    I think Ohio is going to be wonky again, that’s what I think.  Whether it matters in the electoral count is another question.  

    Also look for Washington state to go red on the same day Biden does the honorable thing.

  3. Jubal

    Jacksonian: Legally, the Senate can consider only the top 3 electoral college vote-getters for President, and the Senate can consider only the top 2 for VP (that’s so the Senate cannot deadlock, and we don’t have the risk of a vacant White House.)

    That raises an interesting scenario in the House. If the elections return a few tied state delegations, it’s possible that the vote by states will go something like Romney-25, Obama-21,Tied-4, denying either a majority. A single rogue elector, then, could make someone the third-place finisher and eligible to be elected as a “compromise” candidate.

    I don’t think anyone could talk the House into  making them President that way, but it wouldn’t surprise me if one elector thought it was worth doing because her favorite politician is just so awesome that everyone will automatically rally around her.

    It might make for some awkward moments at Pres. Biden’s foreign policy briefings, though.

  4. flownover

    That would free up Ryan to go clean up HHS and shut down the DOE and some others. Biden would be able to realize one of his fondest dreams and he could be given command of a ship or a boat !

    pt-73.jpg

  5. Severely Ltd.

    If you are considering this as a likely scenario, allow me to introduce you to Professor Paul Rahe. He’ll put your fears to rest.

  6. Shoshanna
    John Yoo: Now the honorable thing, I think, for Biden to do in this case would be to refuse to be a candidate and allow Ryan to serve as Romney’s number two.

    “Honorable”? 

    I believe this is the point at which it would be prudent for us– and most pointedly for Mitt Romney– to recall Shakespeare’s line in “Julius Caesar”, “For Brutus is an honorable man”.

    …particularly given that the Ides of March fall just two months after Inauguration Day.

  7. James Of England
    Dave: Yes, it’s the newly elected House and Senate.  They take their seats in early January and, I believe, certify the presidential election results, even when there’s not a controversy.

    Yes, I also believe they are limited to the actual VP candidates, just as the House must select from the actual presidential candidates.

    Morbid question: in our crazy, polarized times, would having the president and vice president from different parties  invite some nut to attack the president to get his own guy into office? Worth worrying about?

    By statute, January 3rd, the new Congress sits. January 6th, they count the electoral votes. They can be compelled to attend this session, which is demanded by statute, so in order to avoid the quorum requirements the GOP Senators would have to flee to a country without an extradition treaty and with sufficient respect for the rule of law not to hand them over regardless of the legalities. I do not believe that this would make us look good.

    I wholeheartedly agree about assassination, and am of the view that Mitt is the most likely assassination target since Lincoln (maybe FDR).

  8. James Of England

    They need 51 votes (a whole number majority of the entire senate) rather than the usual voting mechanism; it’s unclear if Biden’s vote is counted. Any recounts etc. that last to Jan 6th would be enough to make it easier to deny the vote, and any recount that makes it to Jan 20th would mean that they needed an extra Democratic senator (or crossover vote). During the initial vote, the only two eligible candidates are Biden and Ryan (unlike the Presidential vote, which allows the House to pick from the top three EV getters).

    If Mitt appoints his VP on Jan 21st, he can pick anyone Constitutionally able to be President. It’s my thought that if we have 51 Democratic senators on Jan 6th, we probably can’t get Ryan, but Mitt might be offer the seat to a Democratic Senator if they abstain; he could thus get a better VP than Biden, and swing the Senate to GOP control.

  9. Randy Weivoda

    So it’s the newly elected Senate and House that would vote, not the Senate and House that existed on election day?

  10. Jacksonian Dem

    But would the Senate be limited to considering only Biden and Ryan for VP.    If there are 51 Dem Senators, why couldn’t they vote to make Barack Obama the Vice President?   Or why not Harry Reid?

  11. Spin

    Clearly I cannot choose the cup in front of you.

  12. Nick Stuart

    Biden do the honorable thing? ROTFLMAO, pass the choom bro.

  13. Dave

    Yes, it’s the newly elected House and Senate.  They take their seats in early January and, I believe, certify the presidential election results, even when there’s not a controversy.

    Yes, I also believe they are limited to the actual VP candidates, just as the House must select from the actual presidential candidates.

    Morbid question: in our crazy, polarized times, would having the president and vice president from different parties  invite some nut to attack the president to get his own guy into office? Worth worrying about?

    The 1790s were very polarized times, too, but the situation worked because Adams and Jefferson had been close friends and were still on good terms at that point. Plus, political party still had a bad air about it.

    It would be interesting to see what a VP Biden in a Romney administration would do. Certainly not the current role of senior adviser. Maybe he’d take an active role in the Senate. That’s always been an option for VPs, though that hasn’t been tried since John C. Cahoun.

  14. Richard Finlay
    Dave: .It would be interesting to see what a VP Biden in a Romney administration would do. Certainly not the current role of senior adviser. Maybe he’d take an active role in the Senate. That’s always been an option for VPs, though that hasn’t been tried since John C. Cahoun. · 0 minutes ago

    Edited 0 minutes ago

    I seem to recall Nelson Rockefeller tried to be active as Senate President, but failed to impose himself on them.  I think the excuse given was unfamiliarity with Senate rules.