The ‘stranger things’ that Election Night might bring
So far, the 2016 race has defied all predictions and broken all the rules. But take comfort. After the wildest presidential campaign in our lifetime, the actual outcome will boil down to our trusted rule book: the US Constitution.
There might be more surprises ahead, but the framers prepared us for almost any contingency. Look for electors going rogue, an Electoral College deadlock or contested voting results like Florida’s in 2000. There’s even the bizarre possibility of a Trump-Kaine administration. Here’s the lowdown on some strange — but plausible — outcomes when the votes are counted:
Can the winner of the popular vote lose?
You bet. That’s happened four times before, most recently when Al Gore won the popular vote by 540,000 in 2000. The Electoral College — a body set up by the framers — actually chooses the president. Each state gets a number of electors equal to its representation in the House and Senate combined. So New York, with 27 congressional seats, has 29 electors, but tiny New Hampshire has only 4. Electors are expected to vote for their state’s popular-vote winner.
Even if Hillary racks up huge margins in Illinois, New York and other states with lots of urban voters, Trump could still eke out an Electoral College win because of his following in many less-populous states.
That’s by design. The framers wanted to ensure that the president-elect has support from as much of the country as possible, not just voter-heavy redoubts.
Late-breaking surprises are possible right up to Jan. 6.
That’s the day Congress meets to count the electoral votes. It’s generally just mechanical. But there could be shockers this time.
Pay attention to maverick electors.
Generally, electors are party loyalists and big donors who regard their role as ceremonial. But nothing in the Constitution or in federal law explicitly prohibits them from defying the popular vote in their state and going rogue. Some state laws bar defiance, but those laws are constitutionally suspect.
It’s not like it hasn’t been done. In our nation’s history, 85 electors have defied voters and gone with their conscience instead. This time around, a Washington state Democratic elector — a strong supporter of vanquished Clinton rival Bernie Sanders — has already announced that he won’t cast his vote for Hillary Clinton if she wins his state. He says Clinton is a “criminal” and “she will not get my vote, period.” A second Washington state Democratic elector says he hasn’t ruled out going rogue.
In past elections, errant electors haven’t changed history, but with disaffection for the candidates rampant among the party faithful, and Clinton and Trump neck and neck in battleground states, all bets are off.
Electoral College deadlock.
To win, a candidate must get 270 electoral votes — a majority of the 538 total. Based on the latest polls, this race is so close that it’s possible Clinton and Trump could tie at 269. In that case, the Constitution says the House of Representatives chooses the president, with each state having one vote, and the Senate chooses the vice president. The House is likely to stay Republican after the election, guaranteeing Trump a big advantage.
No one knows which party will control the Senate when it convenes in January, just in time to resolve the deadlock. If it still has a Republican majority, Pence would be chosen as Trump’s veep. But if Democrats win Senate control, Tim Kaine would be their pick. Voila! A Trump-Kaine administration. They’d get along about as well as Cain and Abel.
Will the Supremes decide the election?
Democrats and Republicans are already lawyering up, laying the groundwork for possible challenges to the popular vote in states such as Ohio and Pennsylvania. Just like Bush vs. Gore, this election could land in the Supreme Court. With only 8 justices, a deadlock there is possible. But hold on. Justice Ruth Bader Ginsburg may have to recuse herself due to her disparaging comments about Trump last July, when she broke from court protocol and called Trump “a faker.”
The framers anticipated politics would always be tumultuous and, yes, corrupt. Thanks to the rules they devised, which Americans have respected ever since, the nation has survived 57 presidential contests. We’ll get through this one, too.
Betsy McCaughey is a senior fellow at the London Center for Policy Research.