Each week in The Washington Post Pundit 2020 Power Rankings (in which I and nine other writers participate), I always list Schultz among the top 10 people likeliest to unseat President Donald Trump. I do that because I know the 12th Amendment is out there, lurking. It is Schultz's secret weapon. And it isn't crazy, just improbable.
I asked Hank Adler, a retired Deloitte partner and now an accounting professor at Chapman University, to provide an explainer.
Adler is endlessly curious about the Constitution's provisions for circumstances which might catapult a third-party candidate to the White House. So curious, in fact, that he wrote a political thriller in 2011 about those obscure mechanisms.
The novel, "From Three to Five ," runs nearly 700 pages; I asked Adler to shorten the premise to 200 words.
"If Mr. Schultz were to win in at least one state and neither President Trump nor the Democratic nominee were to achieve 270 electoral votes," he responded in an email, "the election would move to Congress." That's the 12th Amendment kicking in, last seen in its more arcane operations in 1824.
"The House of Representatives must choose between the top three electoral vote recipients in determining the president," Adler continued. "Each state gets a single vote, and to become president, one of the three candidates must achieve the votes of 26 states. Until that happens, the vice president serves as acting president."
Twenty-eight states currently have Republican majorities in their congressional delegations, but some are very closely divided and could flip. Moreover, the 12th Amendment provides that "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." So 33 states (two-thirds of 50) must cast ballots, and at least 26 must be for one candidate of the three to become president. It means that, in a close situation, either party could block the election of the other's candidate - because I doubt the party sensing an impending loss would be quick to provide the necessary quorum. How to get to 26, when at least 33 state delegations must cast their single vote? That is the question. Twitter, of course, will remain calm.
"Because the Senate selects the vice president from the top two electoral vote recipients, that selection should easily be accomplished," Adler continued, assuming - as the 2020 Senate map suggests - that the GOP retains its majority status under Majority Leader Mitch McConnell, R-Ky.
"Given that some states may have an equal number of Democrats and Republicans in the House of Representatives and would thus deadlock, and because of the highly unlikely chance that a Democratic-majority state delegation could ever vote for Donald Trump or a Republican-majority state delegation could vote for the Democrat, and the Schultz state(s) would hold firm, the House of Representatives may never be able to hit the 26 states for either President Trump or the Democratic candidate," Adler concluded. "At that point, assuming that the acting president is Mike Pence, the House of Representatives would be forced to choose between Mike Pence as the acting president for four years or President Schultz."
The electoral college consists of 538 electors, and an absolute majority of 270 electoral votes is required to win an election.
Trump tallied 306 electoral votes in 2016. Say the president loses Pennsylvania's 20 electoral votes in 2020, he would then be at 286. Say Trump also loses Michigan's 16 electoral votes, he would then be at 270. One more state defection and the Democrat wins, right?
Unless one or more states with a difference-making number of electoral votes goes for Schultz, say his adopted home state of Washington with its 12 electoral votes, or perhaps Arizona with 11, or Georgia with 16 or North Carolina with 15. Those last three states are in demographic and partisan transition and, thus, perhaps likeliest to be open to a Schultz appeal. Those votes would then be lost to both major-party candidates and the election would go to the House and to Adler's scenario. It all turns on Schultz winning at least one or more states of sufficient electoral-vote punch - the map dividing just so. Not impossible. Just improbable.
If Schultz honestly and repeatedly presents this specific plan, identifies his target states and pours billions of dollars and tens of thousands of paid staffers into them (billions go a long way in three or four states), and then, on top of that focused effort, makes a good showing in the fall's general-election debates, it's not even as improbable an outcome as, say, Trump's 2016 triumph was.
The key is candor, from Schultz. He has to campaign on the legitimacy of a House election bolstered by inter-party animus and decent showings in the 45 to 49 states he did not win. This last thing, the "decent showing" everywhere, requires that Schultz go into every forum with the specifics of the plan and appeal not just to voters in those targeted states, but also appeal to elite media and independents everywhere to embrace the dream (or scheme, as partisans from both sides would brand it.)
Schultz flubbed his rollout, talking exclusively to Democrats and avoiding the center-right audiences he absolutely needs to woo. There's plenty of time to change advisers and, of course, plenty of time to consider the improbable.
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