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In the century and a half since the emergence of our current two-party system the United States has avoided any crisis in selecting a new president and vice-president–in part because the electoral college amplifies the margin of victory in the popular vote. This amplification gives us a clear winner even when the popular vote is close enough to be called a “photo-finish.” John Kennedy, for example, won only one-third of a percent more popular votes than Richard Nixon in 1960, but collected 38 percent more electoral votes. Bill Clinton, who garnered just 43 percent of the popular vote in 1992’s three-way race, captured nearly 70 percent of the electoral college.
It is always possible that a third–party candidate, by taking a state or two, may prevent either of the major party candidates from winning an electoral college majority, but this has not happened in the last 170 years. In such an event, the Constitution specifies that the election is thrown into the House of Representatives. It is quite likely, however, that in the weeks between the election and the gathering of the electoral college, the third–party candidate would entertain “bids” for his electors from one of the leaders–in return for policy or personnel concessions.
This was the express purpose in 1968 of George Wallace, who hoped to become kingmaker to either Richard Nixon or Hubert Humphrey. Deadlocking the vote in the electoral college will always be a ticklish undertaking, however. A third party not only must capture some states, but must be careful elsewhere not to draw votes from only one of the two major candidates, thus giving the other a landslide.
Wallace’s campaign turned out to be the most successful third–party bid in over 50 years. Yet while Nixon and Humphrey each received only 43 percent of the vote (Nixon just over and Humphrey just under), Nixon nonetheless picked up a decisive 56 percent of the electoral vote.
This occurred because the voting procedure of the electoral college deflates the strength of minor parties and inflates the margin of the winning party. By state law, all electoral votes (except Maine’s and Nebraska’s) are awarded on a winner-take-all basis to the candidate who captures the most votes within that state. To have any electoral effect, then, a party must win outright within states. Regional third–party challenges generally fare better under this system. Southern favorite Wallace actually captured 46 electoral votes. Yet the electoral college still deflated his challenge. Although he had received nearly 14 percent of the popular vote, he got only eight percent of the electoral vote. Some 4.1 million Wallace votes cast outside the states he carried were “wasted.”
A third party with an even national appeal but lacking plurality support within any state will be stymied by the electoral college. Millard Fillmore and the Know-Nothings won 21 percent of the popular vote in 1856, but received only 2 percent of the electoral vote. Republican William Howard Taft was the choice of 23 percent of the voters in 1912, but of less than 2 percent of the electoral college. That same year, Theodore Roosevelt mounted the biggest third–party challenge of the twentieth century, taking 28 percent of the popular vote, yet he ended up with just 17 percent of the electoral vote. Most recently, we had Ross Perot’s 1992 campaign, when he won nearly 20 percent of the popular vote but didn’t earn a single electoral vote.
The fear of vote-wasting is the main psychological burden imposed by the electoral college’s deflation of third–party efforts. As election day approaches, third–party candidates often see their support fade, because voters don’t want to squander their ballot on someone who won’t win. This happened to both Wallace and Perot.
Despite the failures of Theodore Roosevelt, George Wallace, Ross Perot, and others, it is always possible that a third–party candidate may prevent either of the major party candidates from winning the electoral college majority required by the Constitution. Recent changes in the law make this easier. Court decisions have made ballot access for third–party candidates simpler, and the Federal Election Campaign Act ensures public funding, in advance of an election, for any minor party that received at least 5 percent of the vote in the previous presidential race.
If ever someone mounts a third–party campaign that prevents an electoral college victory by one of the major parties, a little-known set of constitutional, statutory, and parliamentary rules governing the choice of a president and vice president would kick in: The newly sworn-in members of the House of Representatives, with one vote per state delegation, would choose the president from among the top three vote-getters in the electoral college. Support of at least 26 state delegations is required for a president to be selected. Simultaneously, the newly sworn-in members of the Senate would vote individually for vice president, choosing among the top two vote-getters in the electoral college, with 51 votes required for victory.
These mechanisms would produce a president and a vice president with unchallengeable constitutional claims to those offices. In a world where government succession is often bent to the dictates of force, the importance of this cannot be exaggerated.
Walter Berns is a resident scholar at the American Enterprise Institute and editor of After the People Vote: A Guide the Electoral College (AEI Press, 1992), from which parts of this were adapted.
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