U.S. House Picking President

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There is a scenario where the U.S. House of Representatives could select our next president. Bill of Rights and constitutional expert Robert McWhirter will tell us more.

Ted Simons: Coming up next on "Arizona Horizon" -- could the U.S. House of Representatives select the next president? Also we'll discuss the significance of Arizona's presidential primary on the national scene, and we'll take a look at voting and turnout in past Arizona primaries. That's next on "Arizona Horizon."

Video: "Arizona Horizon" is made possible by contributions from the friends of Arizona PBS, members of your PBS station. Thank you.

Ted Simons: Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. Our next president could be picked by the U.S. House of Representatives. It's unlikely and would be a first but it is possible and something to keep an eye on. We talked about this with Robert McWhirter, an expert on the U.S. constitution. Welcome to "Arizona Horizon." Good to have you back.

Robert McWhirter: Thank you, Ted.

Ted Simons: Okay. Work with me on this one. I'm not a conspiracy guy but I can see this as a possibility for the presidential election. First of all, can the Republicans run another Republican candidate if Trump wins the nomination?

Robert McWhirter: Yes. A group of Republicans could pull apart and form their own party around a specific candidate, perhaps around specific issues, run a third person. You get into all kinds of complicated issues about what money goes where, where the Republican national committee money goes, but it can be done.

Ted Simons: Okay. It can be done.

Robert McWhirter: Yes.

Ted Simons: How many electoral votes are needed to within the presidency?

Robert McWhirter: 270. There are 538 electoral votes in all that is counted because the Electoral College is based on the representation you had in Congress. So you get each state gets two for their Senator and however many representatives they have. That's why California has 55 electoral votes.

Ted Simons: And we have 11.

Robert McWhirter: Yes. Now, you take 435 Congress persons, 100 Senators, and you add three for the District of Columbia and that gives you 538.

Ted Simons: All right. Work with me here. You need 270 to win the presidency.

Robert McWhirter: Yes.

Ted Simons: If the Republicans send Trump out by way of the convention and, I don't know, Kasich, Romney, Ryan, someone out who could take just one or two states away from Hillary Clinton to keep her from getting 270, I think conventional wisdom is Trump can't get 270. We can talk about that, though. If none of these three get 270, what happens?

Robert McWhirter: Then it goes per the constitution into the House of Representatives. States vote by state, not size of delegation. Arizona gets one vote, California, Arizona has one and California that has 55 gets one vote. It's incredibly undemocratic. But that's what the constitution allows.

Ted Simons: So if I'm a mainstream Republican and I don't like Trump, I don't like Hillary Clinton. I would rather have anyone else other than those two in there, wouldn't it make sense to run -- just tell Trump you win the convention good luck to you, buddy. Have fun. We're going to send a Kasich, a Romney, Ryan, someone out there who could clip a couple of states off so that they can send it back to the house because the house is dominated by Republicans.

Robert McWhirter: Yes. That would be the theoretical possibility. Theoretically that could happen. The problem is in the modern era any third party run has taken votes away from one party or the other. Ross Perot was the perfect example of that. Anderson, remember, in 1980. He took more votes from the Democrat which allowed Ronald Reagan to be elected. If history is the judge, the third party run will probably just make Hillary's win assured. However, if they can have a strong enough third party run that pulled both from Hillary voters and from Trump voters, then theoretically you could deny each side 270 electoral votes and it winds up in the House of Representatives.

Ted Simons: Now, would the house have to select one of the three candidates or could they select the man in the moon?

Robert McWhirter: They would probably have to select one of the three candidates. It dumps back in their hands. But then the math gets weird. There's only one historical precedent, the 1824 election, which was John Quincy Adams, William Crawford, Henry clay, and Andrew Jackson. John Calhoun dropped out early. So what happened was John Quincy Adams got it because the speaker of the House of Representatives threw his weight behind John Quincy Adams. That happened to have been his opponent, Henry clay, who was speaker of the House of Representatives and Henry clay became Secretary of State.

Ted Simons: Tit for tat there.

Robert McWhirter: Yes.

Ted Simons: I didn't get enough electoral votes, I'm taking yours, and I win. This is no one gets enough electoral votes, by the way the Senate would pick the vice president, correct?

Robert McWhirter: I believe that's correct.

Ted Simons: So it's unlikely but it's possible.

Robert McWhirter: It is possible. And in the election year, what isn't possible?

Ted Simons: If you're a mainstream Republican who can't stand Trump or Democrats I would think you would find that appealing.

Robert McWhirter: I think it would be a stimulating idea but the end result it probably would not be a smart move.

Ted Simons: Let's talk about another unlikely scenario but possible. Electoral College. The electoral voters. Some of them bound -- how bound -- say they can't stand Trump. Trump won the state they can't stand him. Sounds like a lot of Republicans can't stand Trump. Are they bound to vote for Trump?

Robert McWhirter: By state statutes in most states they are bound to vote for whoever wins the popular vote in the state. After that, it's a little bit up in the air. But basically after they vote, that's pretty much -- they are probably pretty bound.

Ted Simons: We probably will not see one of those situations where everyone worries that the -- not going to happen until they vote and they always vote. They do what they are supposed do, even in a volatile situation like this they will --

Robert McWhirter: Do what they are supposed to do. The more interesting play comes in the primaries. Those voters have more leeway. That's where you see the wiggle room with the electorates, the nominating people. But the Electoral College, you got to vote for who won.

Ted Simons: Animated and illustrated look at the bill of rights. But what we're talking about is a little beyond, 12th amendment stuff?

Robert McWhirter: Yes, this modified the original constitution. The original constitution said that you took whoever got the most votes became president, second most became vice president, which is why you have got John Adams with Thomas Jefferson as vice president. Not a happy relationship. Thomas Jefferson with Aaron Burr. Guys didn't like each other. That didn't turn out to be a good formula. What happened was they developed the 12th amendment which allows people to vote for tickets. You originally could cast two votes as an elector. Now one is for president, one for vice president. So easier math after the 12th amendment.

Ted Simons: Again, I think most states are bound by this, so let's say Trump gets 270 and there are a couple of electoral voters out there, I can't abide by this. What if they don't vote for him?

Robert McWhirter: I don't think they can do that. They have got to vote for whoever they have to vote for.

Ted Simons: Before we let you go, it seems so complicated. From a kid I was thinking what are they doing with this?

Robert McWhirter: This is an interesting thing. We talked around this at other times. What people don't realize about our government is we don't live in a democracy. We live in a republic. People kind of forget that. Originally there was only one part of one branch of government that was popular election, the House of Representatives. Presidents are elected by the Electoral College. The Senate was elected before the 17th amendment by the state legislature, Supreme Court justices of course aren't elected so it was only that part. There was another issue about the Electoral College and that was it was to perpetuate slavery. The south got a disproportionate share of electoral voters because they had more Congress people because of the three-fifths clause counting slaves as three-fifths of a person. They got more representation in the House of Representatives thus more votes. That's why our first presidents, the first 60, 80 years of the republic were all southern slave holders only John Adams and John Quincy Adams were the northerners and they only got one turn each.

Ted Simons: Virginia the birthplace of presidents. Slave holders.

Robert McWhirter: Slave-holding presidents. Yes. Then that's what it was. The other thing about the Electoral College is it gives certain people in certain states disproportionate power. Six states have three votes and they have to have three votes because they have two Senators by the constitution and one representative regardless of their population. North Dakota, South Dakota, Montana, Wyoming, New Hampshire and Alaska have three electoral votes. If it was just done on population they would never have three electoral votes. So if you are in Wyoming, your vote counts more than if you are in California, which has 55 electoral votes but it's done proportionally to the population in California. So you're in Wyoming or Montana you just get a bigger say in democracy than everybody else.

Ted Simons: Crunching numbers representative government.

Robert McWhirter: Alaska.

Ted Simons: Good to have you here. We wanted to get you on this one because it could happen. Your watch out for that house of representative thing.

Robert McWhirter: If that happens we'll crack open a beer.

Ted Simons: Good to see you.

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Robert McWhirter: Bill of Rights and Constitutional Expert

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