Could The House Of Representatives Pick Someone Who Isn't Clinton Or Trump? The 12th Amendment Decides What Happens
People have been "talking down" our democracy, or at least some of its processes, since long before Donald Trump took to the debate stage and threatened not to accept the results of the presidential election on Nov. 8. When there were superdelegates threatening to decide the outcome of the Democratic primary, many cried wolf, but then when it was clear Donald Trump would be chosen as the GOP nominee, others called on the Republican Party to stem him off. Now, regarding the general election, you might wonder whether the House of Representatives could pick someone who isn't Clinton or Trump.
It's not a totally crazy question to ask, because the House of Representatives is given the power to decide ties in the Electoral College, or if neither candidate gets a majority. But the answer, thanks to the same 12th Amendment which gives the lower house this right, makes that highly unlikely this go-around. Here's the language from the amendment (passed to clear things up from the original rules at the start of the Constitution, Article II, Section 1, Clause 3). Basically, each elector gets a vote for president and another for vice president, which are then counted in D.C. And then:
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.
That sounds good for pro-third-party people. And many Republicans unhappy about Trump went around cable talk shows espousing the possibility. But those pundits missed this tidbit from the preceding text: "from the persons having the highest numbers not exceeding three on the list of those voted for as President."
In other words, the House can only vote for candidates who received Electoral College votes in the first place. The Republicans can't vote in someone they like, such as Paul Ryan. They would be stuck with Clinton, Trump, and anybody else who has an electoral college vote. That's where the process moves from highly unlikely to impossible.
We would know if there's even the most remote chance after the end of voting on Nov. 8, because a third-party candidate would have to win a whole state to get its Electoral College votes. At this point, polling doesn't suggest that Libertarian Gary Johnson or Green Party candidate Jill Stein will win votes in the Electoral College. The most likely outcome at this point would be a McMullin win in Utah — or a faithless elector could throw another name in the ring.
Then, after that, if there was a third candidate to choose from, the Republicans would have to agree and choose that option. Maybe a contingent of Republicans and another group of Democrats could vote together, but it all seems quite the stretch. If a majority of states in the House don't agree, then the vice president would become president. Quite confusing, but place your bets on either Trump or (more likely) Clinton moving into the White House in January.