May 24, 2016

Who couldn’t welcome former Governor William Weld back to the fray? He’s highly intelligent, a good debater, and witty. Nothing against Gary Johnson, but Weld should head the Libertarian Party ticket. But then, it’s all fun and games until the constitutional crisis comes.

If the Johnson-Weld ticket, as some speculate, is designed to deny either Donald Trump or Hillary Clinton an Electoral College majority, that would be a disaster. The Twelfth Amendment to the Constitution provides that

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. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

The Twelfth Amendment does not have a storied history. When it was used in 1825, popular vote winner and Electoral College vote leader Andrew Jackson was beaten in the House by John Quincy Adams. Speaker Henry Clay had been a presidential candidate and might have had an advantage in the House, but he finished fourth in Electoral College votes and thus was ineligible to be chosen. Clay engineered the Adams victory and was appointed Secretary of State. Jackson termed the deal the “corrupt bargain.”

Then, as the House website explains, there was the election of 1876 which was not decided by the House but by a special commission appointed to sort out disputed Electoral College votes. Democrat Samuel J. Tilden won the popular vote and it appeared, the Electoral College vote. But the commission voted otherwise and awarded the presidency to Republican Rutherford B. Hayes. As compensation, the Republicans ended Reconstruction, allowing racist Southern Democrats to usher in the Jim Crow Era.

Given a corrupt bargain and Jim Crow, there isn’t much reason to hope that Johnson and Weld succeed in throwing the election into the House.

Just imagine. The Republican Party will control a majority of state delegations in the 115th Congress, so they’ll pick the next president. The choices would be Donald Trump, Hillary Clinton, and Gary Johnson. The Johnson-Weld ploy is thus set up to anoint Trump, the Republican. Suppose Hillary Clinton wins the most popular votes and a plurality of Electoral College votes, and then the House picks Trump. That would certainly trigger painful memories of 2000, when the Supreme Court ignored popular vote winner Al Gore and awarded the presidency to George W. Bush.

What if Trump does something so awful before November that House Republicans decide to swallow hard and vote in Clinton or Johnson? Trumpistas would howl that Speaker Paul Ryan plotted this thing out, thus his tepid (if that) embrace of Trump. Trump all but threatened violence at the Republican National Convention if he didn’t get his way, so imagine his reaction here.

 Many Americans have come to regard the political process as rigged. Trump shrieked when Ted Cruz took more Colorado delegates than he did, and a Democratic State Convention in Nevada descended into chaos when Bernie Sanders’ supporters felt the process was biased against them. Just imagine Trump and Clinton loyalists, or any of us, getting our heads around the Twelfth Amendment.

The House choosing a president would be a calamity of the highest order, and a dangerous one at that.

Bill Weld, Libertarian Party, Twelfth Amendment

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