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June 23, 2015

In this intricate and funny guest post, Professor Christoper Galdieri of St. Anselm's College explains how teh Constitution treats Selina Meyer of HBO's Veep in her quest for the 270 votes she needs to become the president of the United States. 

The season finale of HBO's Veep ended with one of those presidential election scenarios that are fun to think about and would be terrifying to live through: A tied vote in the electoral college, with President Selina Meyer (Julia Louis-Dreyfuss) and her Republican opponent each winning 269 electoral votes.  While the characters on the show had to scramble through online copies of the Constitution to find out what happens after a tie, students who have taken my introductory course on American government know that the House would choose the new president from the top three electoral vote-getters, while the Senate would choose the vice president  from the top two electoral vote-getters.  For added excitement, members of the House would not vote as individuals, but as state delegations, with each state getting one vote, and the votes of a majority of all states needed to win.

            In the Veep finale, we're told that the Congressional elections are as chaotic and close as the presidential result, with no one sure, late on election night, which party will control the House.  It's suggested that in the House so many state delegations will deadlock that the chamber will be unable to choose a winner, and that in that case whoever the Senate chooses as vice president - likely Meyer's running mate, Tom James (Hugh Laurie) -- will become president on January 20.  James goes so far as to joke, in a manner that's clearly not a joke, that if he does end up becoming president, Meyer could be his vice president - putting her back where she started at the beginning of the series.

            Could such a scenario happen in real life?  Only up to a point.

            Could the House deadlock so badly it could not choose a president?  Theoretically, yes; if no one can win 26 state delegations, then no one becomes president.  And especially in today's hyperpartisan, polarized atmosphere, it's not that hard to imagine evenly split state delegations being unable to come to an agreement about which candidate to vote for.  In New England, for instance, both Maine and New Hampshire currently have one Democrat and one Republican representing them in the House.  If the two members of each delegation could not come to an agreement, their states would cast no vote.  And any member of Congress whose vote allowed a president of the opposite party to take office could count on losing their next primary to just about any opponent, up to and possibly including a ham sandwich.  Twenty-four other states, by my count, have an even number of House members, so there are ample opportunities for states to deadlock between equal numbers of Democrats and Republicans.  Given the right partisan breakdown in the right states, there could in fact be a House of Representatives where no candidate can win the support of 26 states' delegations.

            What would the Senate do?  If the House came to a decision quickly, I suspect a majority of senators would then vote for the president-elect's running mate regardless of party.  Just as the presidency's power would make it difficult for House members to cross party lines, the vice presidency's lesser importance probably would make it easier to do so.   But if it looked like the House was going to deadlock, my guess is that the Senate would vote, very close to inauguration day, along party lines for vice president; the winner would then be sworn in as vice president at noon on January 20 and then act as president until the House reaches a decision.  This is the scenario the <i>Veep</i> season finale suggests will make Tom James president.

            But then what happens?  James suggests that he'll need to fill the vice presidency if he's acting president, and that he'd be glad to have Meyer do the job.  But from a legal perspective, the vice presidency will not be vacant: Acting President James will still also be Vice President James, and only acting as president in the same way that, for instance, Vice President George H.W. Bush was for a few hours during President Reagan's colon cancer surgery in 1985.  The chief difference is that James would be serving in a more or less open-ended fashion until the House chooses a president, while Bush acted as president only until Reagan came out from under anesthetic. 

            The Constitution turns out to be surprisingly opaque about presidential succession; when William Henry Harrison became the first president to die in office in 1841, it was an open question as to whether John Tyler was president in his own right, or merely acting as president until a new election could be held.  This question was settled not by the courts or by Congress but by Tyler himself; he insisted that he was president, full stop, and demanded that everyone else in government behave accordingly.  But the Constitution did not actually specify that the vice president becomes, rather than acts as, president when a president dies or resigns until the Twenty-Fifth Amendment was ratified in 1967.  And even that amendment's provisions would not apply in the case of Vice President James: The presidency would be vacant not because of death or resignation but because of Congressional deadlock.

            Could Tom James do what John Tyler did, and insist that, whatever the Constitution said, he was fully and completely president, and then appoint Meyer as his vice president to help prove the point?  There would have to be a vacant vice presidency for that to happen, and James would be the incumbent vice president.  If he were to resign, he would no longer be vice president and thus unable to act as president at all.  And an acting president who tried to take his role too seriously might be just the thing to break a deadlock in the House of Representatives.  So Acting President James' best course of action, if he wanted to remain Acting President, would be to avoid any actions that would exacerbate an ongoing constitutional tension resulting from the tied electoral vote.  He'd then have to hope that the need to deal with pressing matters would encourage Congress to let the small problem of the country not actually having a proper president fade into the background.

            Fortunately, Veep is fiction, not reality.  An exact tie in the Electoral College is unlikely to happen in 2016 or any other year.  Stories like the one on Veep are meant, first and foremost, to entertain.  But this storyline, absurd as it may seem, sheds light on some of the more rickety, and more neglected, parts of our electoral system and gives us a chance to imagine worst-case scenarios about how a tied vote could play out in real life.  It's also a good way to make sure viewers come back next season.

Selina Meyer, VEEP, Julia Louis-Dreyfus

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