Go to the mobile version of this Web site.

Login | Contact Us | Site Map | Paid archives | Electronic edition | Subscription Questions | Extras

HARDAWAY: There could be an Obama-Palin administration

By Robert Hardaway

Published October 12, 2008 at 12:05 a.m.

Text size  

More Speakout

More stories »

Recent polls show that a tie in the Electoral College would be very likely if Barack Obama wins the popular vote in Pennsylvania, New Mexico, Iowa and Colorado, but loses in West Virginia, Florida, Ohio and New Hampshire.

While it is common knowledge that in the case of a tie in the Electoral College the presidential election is thrown into the House of Representatives, many are unaware that in the House election, each state is entitled to only one vote each. Thus California gets the same number of votes as either Alaska or North Dakota.

Since Democrats currently control a majority of state delegations to the House of Representatives, it is likely that in the case of a presidential election in the House, Obama would be chosen as the next president of the United States.

However, because the U.S. Constitution is not regularly taught in many of our public schools, many Americans seem unaware that the 12th Amendment provides that in the case of tie in the Electoral College, the election of the vice president is thrown not into the House of Representatives, but into the Senate.

While it is true that Democrats now enjoy a razor-thin, one-vote majority in the Senate, it is also true that Sen. Joseph Lieberman, who caucuses with the Democrats, supports the Republican presidential ticket, as revealed in his speech at the Republican convention on Sept. 2.

Thus, if Lieberman were to vote for Sarah Palin for vice president in the Senate, the result would very likely be a 50-50 tie vote between Palin and Joseph Biden. Under the Constitution, such ties are broken by the vice president (i.e., Dick Cheney). Assuming that Cheney casts the tie-breaking vote for Palin, the result would be that Obama would be elected president and Palin would be elected vice president.

Given that Obama is a heavy smoker (thereby significantly increasing his likelihood of developing lung cancer), while McCain might have excellent long-life genes (his 96-year-old mother is very alive and active), it could very well be that Palin's most direct route to the presidency would be through Obama rather than McCain.

There are, however, several more constitutional wrinkles to take into account.

The 12th Amendment was adopted in 1804 to overturn the provisions for presidential election found in Article II. That article originally provided that whoever got the most electoral votes would be president, while the candidate who got the second-most votes for president would be vice president. This resulted in the awkward result that the president and vice president were often from different parties.

However, in many respects, the 12th Amendment is ambiguous. It does not specify whether the presidential election should be thrown into the outgoing House of Representatives or the new one elected on Election Day. Nor does it set forth rules regarding whether votes in the state delegations should be by secret ballot or open ballot. Indeed, it doesn't even state whether a state's vote is to be determined by a majority vote within the delegation, or a plurality.

It would therefore behoove Congress to promulgate rules now for election of the president in the House and the vice president in the Senate. The worst possible time to consider such rules would be after the election when judgment on any particular proposed rule will be tainted by which candidate it will most favor.

Robert Hardaway is professor of law at the University of Denver Sturm College of Law.

Comments

  • October 12, 2008

    2:29 a.m.

    Suggest removal

    Ofearghail writes:

    Our best hope is that Gov. Palin becomes vice president not through such amazing technicalities, but by the common sense of a majority of the American people to bring her to Washington alongside John McCain.

  • October 12, 2008

    5:34 p.m.

    Suggest removal

    Brix57 writes:

    Mr. Robert Hardaway may be a professor of law at University of Denver Sturm College of Law, but clearly shows that his knowledge of other professions is quite nil. Perhaps too much time spent in the academia of his choice?

    12th Amendment was perhaps the beginning of the end for the Constitution as written. Vice President is or should be an elective office and not one that is hanging on the coattails of the elective office of the President. Since we now have only two parties from which to elect (reference: Denver News Agency) our government from, Mr. Hardaway's opinion piece is only a fantasy of a weird sort.

  • October 13, 2008

    12:04 a.m.

    Suggest removal

    hunterman writes:

    Our best hope is that more intelligent people than morons vote and Palin is sent packing to face impeachment in Alaska.

  • October 13, 2008

    12:08 p.m.

    Suggest removal

    mvymvy writes:

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote would be politically relevant and equal in presidential elections.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes-that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    So there would never be a tie in the electoral vote, because the compact always represents a bloc consisting of a majority of the electoral votes. Thus, an election for President would never be thrown into the House of Representatives (with each state casting one vote) and an election for Vice President would never be thrown into the Senate (with each Senator casting one vote).

    The National Popular Vote bill has passed 21 state legislative chambers, including one house in Arkansas, Colorado, Maine, North Carolina, and Washington, and both houses in California, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes - 19% of the 270 necessary to bring the law into effect.

    See http://www.NationalPopularVote.com

    susan

  • October 15, 2008

    9:56 a.m.

    Suggest removal

    Danchan writes:

    I'm sorry, but the scenario you have outlined is impossible.

    While it may be possible under the constitution, the odds of the scenario outlined above being sucessfully communicated to Governer Sarah Palin are zero.

  • October 16, 2008

    9:05 a.m.

    Suggest removal

    spencerr writes:

    McCain and Lieberman are friends. I doubt that Palin is also Lieberman's friend. Should this very unlikely scenario occur, it would be Obama and Biden.