[EL] Does Gary Johnson Not Understand How the 12th Amendment Works?

[Derek Muller]

Three brief supplements to these points.

If the electoral college ties 269-269, then it'd be thrown to the House and
Johnson would *not* be eligible. (Of course, if, after Election Day, it
looks like it's 269-269, I imagine the race for faithless electors will
begin in earnest, either to move one candidate to 270, or to get a third
candidate with even a single vote as an option for the House.)

And factually, in 1992, Ross Perot secured 30% of the popular vote in
Maine, 27% in Kansas, 26% in Nevada... and didn't win a single electoral
vote. Absent some deeply unusual circumstances (e.g., some large state
amending its award of presidential electors to a proportional system in the
next few weeks), it's hard to imagine a scenario where even modestly
outperforming Perot '92 nationally would give Johnson a single electoral
vote.

Finally, as the vice president is only chosen among the top two candidates,
I look forward to the inevitable speculative op-eds describing the future
Johnson-Kaine or Johnson-Pence administration....

Best,

Derek

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy
Malibu, CA 90263
+1 310-506-7058 <+13105067058>
SSRN: http://papers.ssrn.com/author=464341
Twitter: http://twitter.com/derektmuller

On Mon, Jul 25, 2016 at 7:20 AM, Sean Parnell <
sean at impactpolicymanagement.com> wrote:

> It’s a little more complicated than that, Rick. Each state gets a single
> vote, and only the top 3 candidates are eligible to receive votes. Johnson
> is apparently presuming he’d be one of those three.
>
>
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> I ran the numbers a few months back and Republicans control 30
> delegations, meaning there are possibly 30 votes for Trump. But if a state
> deadlocks – say, 4-4 – then no vote is cast. So if the 2017 House has fewer
> Republican-controlled delegations (either tied or flipped to the Democrats)
> and there are a handful of states (Utah comes to mind) that are
> GOP-controlled but unwilling to vote for Trump, then he could still be held
> below 26 – the magic number to be elected by the House.
>
>
>
> His musings about the “first ballot” have more to do with political
> perceptions, “momentum,” and the like – he’s saying if neither Clinton nor
> Trump win 26 states on the first ballot, then there’s a possibility the
> House turns to him. I wouldn’t put money on it, but it’s as reasonable a
> scenario as anything else that’s happened this year.
>
>
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>
> Sean Parnell
>
> President, Impact Policy Management LLC
>
> Alexandria, Virginia
>
> 571-289-1374
>
> sean at impactpolicymanagement.com
>
>
>
>
>
>
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> *Does Gary Johnson Not Understand How the 12th Amendment Works?*
> <http://electionlawblog.org/?p=84545>
>
> Posted on July 23, 2016 3:26 pm <http://electionlawblog.org/?p=84545> by *Rick
> Hasen* <http://electionlawblog.org/?author=3>
>
> From the Ryan Lizza New Yorker
> <http://www.newyorker.com/magazine/2016/07/25/gary-johnson-the-third-party-candidate>
>  story:
>
> *“If it gets thrown to the House of Representatives and it goes beyond one
> ballot, I could be President,” Johnson said, smiling at the absurdity of
> the idea. “Because, if it goes beyond one ballot, Democrats are not going
> to cross over the line to change to Trump, and Republicans are not going to
> go over the line to support Clinton. They’re going to have to compromise,
> and I’d be the compromise.”*
>
> The 12th amendment provides that if no one gets a majority for President
> the House votes by state, and it is hard to imagine the Republican not
> chosen by the House.
>
>
>
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