Zombie Election: 5 Ways the 2012 Race Could Stagger On for Months

By Garrett Epps

There are two weeks left until the vote -- but who says things will end with the vote?

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Outside the Supreme Court on December 12, 2000, the day Bush v. Gore was decided (William Philpott/Reuters)

The only prospect worse than two more weeks of this ugly presidential campaign is the thought that it may not actually end November 6. But as the polls tighten, the chances of a 2000-style finish rise. If that happens, it will be the fault of the Constitution and the slovenly way we have implemented it: as a skewed, undemocratic system, run by semi-competent, deeply partisan local officials, that has many ways to go wrong and few fallbacks when it does.

Let's look at the possible nightmare scenarios.

1. Electoral-popular vote split: As of this weekend, Governor Romney had surged to a small lead in a number of tracking polls. State polls, however, continue to suggest that President Obama stands a better chance of assembling 270 electoral votes. If both sets of polls are accurate, the explanation, as Ezra Klein suggests, may lie in a move toward Romney by previously unconvinced red-state conservatives, contributing to supermajorities for Romney in states like Georgia and Alabama whose electoral votes were never in doubt. If Obama narrowly carries enough swing states while Romney romps in red states, Romney might have a popular plurality while Obama wins the electoral vote.

This would be a truly wretched outcome. The electoral-vote system was a terrible idea when the Framers created it, and it has gone wrong four times. It failed in 1824, when John Quincy Adams won nearly 40,000 fewer popular votes, and 15 fewer electoral votes, than Andrew Jackson, but was nonetheless elected president by the House of Representatives. It failed in 1876, when chaos at polls in the South permitted a Supreme Court commission to grant the election to popular-vote loser Rutherford Hayes (known to many thereafter as "His Fraudulency"). It failed in 1888, when Benjamin Harrison defeated incumbent Grover Cleveland with the same kind of win Obama might achieve -- narrow Harrison majorities in big states against huge Cleveland winds in the one-party South. And, of course, it failed in 2000, when George W. Bush lost the popular vote, by 47.8 to 48.4 percent, but was installed by a vote of 5-4 in the Supreme Court. An electoral-popular split also seemed possible in 1988, and we had a close encounter with one in 2004, when John Kerry might have been the electoral winner had he managed to get 150,000 more votes in Ohio.

If Obama wins without a popular plurality, we can expect Fox News to begin demanding that he concede anyway, to which the sane answer is the one Bush gave in 2000: No. If the president were picked by popular vote, both candidates would have run very different campaigns; in technical terms, the winner of electoral votes in an electoral-vote system is called the winner. (For those who doubt my sincerity, consider this quote I gave a reporter in 2000, when I was a volunteer with the Gore campaign: "Saying Gore should win because he won the popular vote makes as much sense as saying that Bill Clinton should get a third term because polls show he's more popular than either of these guys.")

2. Narrow electoral victory for one side or the other: Every few cycles, one or two electors refuse to support their party's candidate. It's never swung an election, but it could. GOP vice-presidential nominee Bob Dole once told a congressional committee that, had Gerald Ford carried Ohio in 1976 to come within seven electoral votes of Jimmy Carter, "We were shopping -- not shopping, excuse me. Looking around for electors ... We needed to pick up three or four after Ohio."

Neither side is above this kind of shenanigans, but this year the temptation might be great and, with Crossroads GPS and the Koch brothers in the mix, the amount of money available to produce a switch might be prodigious.

3. Tie in the electoral vote: Numbers guru Nate Silver on Sunday gave this outcome only a 0.4 percent chance of occurring, but that's more risk than a stable country ought to be running. If there is a tie, and neither side can flip a treacherous elector, the choice of the president would fall to the House. In that process, under Article II of the Constitution, each state -- from mighty California to tiny Wyoming -- would have one vote, determined by a majority of that state's House delegation. An evenly divided House delegation casts no vote; the winner must receive the votes of 26 states. The choice will be made by the new Congress, which takes office in early January. The math of the current House suggests that the next one would likely produce 26 votes for Romney. In the meantime, the Senate would pick the vice president. Current political math gives an edge to Joe Biden in that count. That's important because if the House doesn't produce a winner by January 20, the vice president-elect "shall act as President until a President shall have qualified."

So the most likely result of a tie is President Romney and Vice President Biden; but Acting President Biden is far from impossible. If neither house can produce a winner, then, under 3 U.S.C. 19, John Boehner is required to resign as speaker of the House and become acting president for the rest of the term. (Of course, if that result was clearly in the works, the Republican House at its first meeting could elect another speaker -- even Mitt Romney, as the Constitution doesn't require the speaker to be a member of the House. But if the situation were that calm, it's hard to see how both houses would be paralyzed.) If for any reason the House is unable to elect a speaker, then the president pro tempore of the Senate (who is and will remain Senator Daniel Inouye, unless control of the Senate flips) becomes acting president.

4. Narrow electoral total, plus chaos in recount in one or more swing states: We have done almost nothing to prevent a repeat of Florida 2000. Indeed, given the levels of partisan hatred abroad this year, the Florida fight may end up looking like James Monroe's Era of Good Feeling. Republican state officials in Ohio, and perhaps elsewhere, seem committed to holding down what one of them called "the African-American ... voter turnout machine." There are reports of organized vote-suppression activities by vote vigilantes. If voting takes place and a recount begins, we may see private groups using extralegal means to skew the results. Remember the Brooks Brothers Riot of 2000, in which a Republican Congressman led Republican staffers in disorder that prevented a recount of the contested ballots in Miami-Dade County? This time around could be worse.

Even if no disorder occurs, a close result in either Pennsylvania or Ohio could trigger a power play by the Republican majorities in both state legislatures, with the cooperation of the states' Republican governors. Remarkably enough, the Constitution doesn't require a popular vote for electors; it simply says that they shall be chosen "in such manner as the Legislature thereof may direct." In Florida, the Republican legislature was preparing to set aside the result of any Gore recount victory and simply designate the state's electoral votes for Bush. The Gore campaign was readying a court action arguing that the Constitution also says that "Congress may determine the Time of choosing the Electors," and that Congress has chosen federal election day, the first Tuesday after the first Monday in November.

The mention of "court" takes us to what is in some ways the most chilling as well as the most likely of all the dystopian scenarios:

5. Ryan and Romney win electoral vote, 5-4: Any of the above scenarios could trigger an emergency application for a stay and an injunction, which would quickly find its way to the Supreme Court.

Here there be monsters.

The court's 5-4 decision in Bush v. Gore was a severe blow both to democracy and to the public's faith in the rule of law. Confidence in the court has rebounded -- but not to pre-2000 levels. A second such intervention would be far more harmful to the court. For one thing, in 2000, there were Republican appointees on both sides of the vote. This year, the court has five Republicans and four Democrats, and it's hard to see how a case awarding the White House would be decided by anything but a party-line vote. If that happens, the bitterness in the country may be generational. And the court may never recover.

Partisans on both sides this year are convinced that a victory for the other side would be a historic disaster. But there are worse things than losing an election. Losing our self-governing system would be one of them.

The only good result that could come out of another electoral disaster would be a determination to fix our electoral system so this won't happen over and over. Abolishing the electoral-vote system is the most elegant response; but if there is no will to do that, we could at least set up a modern, independent, nationwide electoral system to make sure that every citizen can vote and every vote is counted.

Alas, that is likely to remain a dream, even if Election Day 2012 turns into a nightmare.

This article available online at:

http://www.theatlantic.com/politics/archive/2012/10/zombie-election-5-ways-the-2012-race-could-stagger-on-for-months/263955/