Forget a Brokered Convention -- a Third Party Candidate Should Yield a Hung Electoral College and 'Take It to the House' to Pick the Winner!

Now that the field of Republican presidential candidates is down to a "Final Four," let's look at the "seedings" following the results of Super Tuesday, just as though we were looking at NCAA "March Madness" basketball or at the January College Football playoffs. Trump clearly has the Number 1 seed, followed by Cruz at number 2, Rubio at number 3 and Kasich at number 4. In sports you wouldn't usually get into this round with no wins (Kasich), just one win (Rubio), or even just three (Cruz), but let that point pass!

In both college basketball and football, number 1 would play off against number 4, and number 2 would face number 3. Let's imagine that, on a "neutral" field, Trump vs. Kasich in Illinois and Cruz vs. Rubio in Michigan. Actually, there are over thirty primaries and caucuses to go, many set up as "winner-take-all," no matter whether the score shows the leader with well less than 50 percent. That fact is Trump's key asset and the other three candidates' biggest roadblock; because we don't have a playoff, all four compete together, game by primary game.

With Trump holding a significant delegate lead already after Super Tuesday, two conflicting and contradictory strategies have emerged on how to "stop" him from winning the nomination.

The "Cruz strategy" is that Rubio and Kasich should drop out, even before their coming "home games" in Florida and Ohio, leaving the Texas senator to go one-on-one with Trump for the balance of the season. But that assumes the dropouts' votes would go very decisively to Cruz and not Trump!

The other two candidates currently prefer the "Three Against One" strategy, in the hope that their votes combined will be enough to deny Trump a majority of delegates in aggregate and take the decision into the "overtime" of a contested GOP convention in Cleveland. But this assumes one or another of them can beat Trump in a decent number of "winner-take-all" states, and the record thus far suggests he can win with less than 40 percent of the vote while running against three others. And Trump has made clear that, if he has the most delegates but gets jobbed with the Convention turning to another candidate, he wouldn't hesitate to run under his own third-party banner.

So both current strategies for stopping Trump seem deeply flawed by the shakiness of their own assumptions. But wait, there is another way that also involves a third-party candidacy--not a Trump third party, but rather one in fact sponsored by Republicans themselves under another name. This strategy would dust off the Twelfth, Twentieth and Twenty-Fifth Amendments to the US Constitution, which together set the terms for deciding who will be President when there is a "hung" Electoral College with none of three or more Presidential candidates winning enough states to reach the 270 electoral vote majority. In essence, the amended Constitution tosses the decision to the fifty state-by-state delegations in the newly-elected House of Representatives. In the current Congress, the GOP holds an enormous lead in the delegations they control: 33, with 14 in Democrat hands and 3 tied! The "establishment" could rise again--and there is a precedent!

Way back in 1824, there were initially 10 candidates for the presidency (not quite the 19 we started with in 2015), eventually devolving to three or four "serious" competitors by November; there were the rough-hewn "outsider" Andrew Jackson of Tennessee, the establishment insider and Secretary of State (and son of a former president) John Quincy Adams of Massachusetts (the Jeb! of his time?), and Kentucky's conservative Representative (and speaker of the US House) Henry Clay, along with Treasury Secretary William Crawford (who had suffered the misfortune of a stroke).

When the votes were counted, no candidates commanded a majority of the Electoral College; Jackson had won 42 percent of the popular vote (more than Bill Clinton's 38 percent in 1992) but had only 11 of the 24 states with 99 electors--32 short of a majority. Adams had the votes of 84 electors, Crawford held 41, and Clay had 37.

Under Amendment XII of the US Constitution, the House of Representatives then was charged with choosing the president from among the candidates with the top three electoral votes, which eliminated Clay but left him as potential kingmaker as the House speaker.

The votes in the House under the Constitution are not by individual but by state delegation majority, with one vote per state; Speaker Clay had done enough to deliver the majority of 13 state delegation majorities to Adams (including his own Kentucky, which had not cast even one popular vote for the Yankee). Adams then nominated Clay to be his secretary of state only three days later!

Historians record that the sense of a "corrupt bargain" haunted Clay for the rest of his political career--he never became president--and no doubt also cast a pall over the prospect of having a presidential election decided by the House of Representatives. In another hung election in 1876, Rutherford B. Hayes eventually won through a deal in the Electoral College, not the House.

If the Republicans dismayed by having Trump as their candidate in 2016 were to, say, impose on Mitt Romney to run again under a new banner, and if he were to win in a couple of states like Utah, Massachusetts, New Hampshire or California--all his "home states" --plus some of the states he won in 2012, such as Indiana, West Virginia, Kentucky, Missouri or North Carolina, the combined electoral votes could well deny either Trump or Clinton and Sanders a 270 majority. As a consequence, Paul Ryan, likely speaker of the new House, would become the most powerful person in America for a few weeks--and candidate Trump might come to regret that he publicly threatened that Ryan "is going to have to pay a big price" if he somehow did not embrace the Trump magic! (Of course, Ryan ran on a presidential ticket with Romney last time around!)

The GOP is unlikely to lose much of its state-by-state congressional leverage over the Democrats, so Clinton would probably be toast. Romney would lose in the House only if enough remaining Tea Party representatives stood firm for Trump, but that could create an opening for Clinton--or precipitate a "hung" House with no one getting a majority of the state delegations after many ballots before January 20!

Since the 1824 election, Amendments XX and XXV have addressed, among other "technical" possibilities, that situation where no candidate is able to win a majority of the House delegations by the time the incumbent president term expires. Rather than having the incumbent hold over his or her term, the new vice president would take office as president; but with a hung 2016 Electoral College, the Senate, under Amendment XII, would have to choose the new VP from among the top two finishers by simple majority of the whole number of Senators, not just those present and voting. It does not take much imagination to imagine the hotly-contested Senate winds up split 50/50 between the GOP and the Democrats, and in any event a few strategic abstentions could also throw the whole matter back to an equally indecisive House of Representatives!

What happens then? The Presidential Succession Act of 1948 pursuant to Section 4 of Amendment XX provides that the next in line to the presidency in the absence of any Constitutionally qualified person to serve as president or vice president is--guess who--the unquestionably "GOP Establishment" sitting Speaker of the House--the Honorable Paul Ryan.

Then, who would be paying a big price?