Dissatisfaction with the candidates of the two major political parties in this cycle has focused even more than the usual attention on the idea of third party candidates and how we can escape from our money-dominated two party nightmare. Technically speaking there is nothing in the Constitution giving either the Democratic or Republican parties an official position in our politics, nor does the Constitution limit us to a choice between two parties. We as voters have the power to elect the candidates of our choosing whether they claim a party affiliation or not. We as voters are free to choose leadership from between two, three, four, five, or as many different parties as we wish.
I have friends who, like me, supported Bernie Sanders in his primary bid and who likewise are frustrated with the bias shown by the Democratic National Committee in favor of the establishment candidate (not to mention the mass-media which appeared to do its bidding) – all of which probably prevented Sanders from achieving the nomination. I like most of those I know in this category are resolved to support Hillary Clinton in the general election because we understand that the only realistic alternative is unacceptable. (And honestly, she’s really not the evil cartoon character her opponents have made her out to be.) You can choose to disagree . . . that’s fine by me . . . and that’s not what this article is about.
There are a significant number of supporters of Senator Sanders who maintain that they cannot vote for Secretary Clinton and cannot support the Democratic Party after what was clearly a rigged selection process. I get that. I truly understand their anger. Some of them say they will stay home (self-disenfranchisement) or who will either vote for the Green Party candidate Jill Stein or write in Bernie Sanders. Your call. I’ve said it before, and I’ll say it again . . . making the case that choosing Hillary Clinton over Donald Trump is a decision between the “lesser of two evils” is like saying that you can’t stand the taste of Pepsi, and because you are presented with the choice of a glass of Pepsi or a glass of gasoline you can’t make up your mind even though at the end of the day not only will you be force-fed one of the two – the rest of us will also. I would rather have a hand in the choice.
Likewise, I have friends and co-workers who typically identify as Republicans yet who cannot bring themselves to vote for the nominee of their party for many reasons, most of those boiling down to what I have already discussed here and elsewhere. I have a number of friends who identify as Libertarians and who, like many disenfranchised Republicans say they will support Gary Johnson this year.
At the end of the day you will vote your conscience. I have my opinion and if you’ve been following this blog or my Facebook postings you are quite aware of where I stand. I’ve had many interesting discussions with friends of all political leanings about whether or not voting for a third-party candidate is “throwing your vote away” – I’ll allow you to make that decision for yourself. (See my Pepsi / gasoline analogy above, and decide which candidate is which, according to your own leanings.)
The reality is that on November 9th either the nominee of the Democratic Party or the Republican Party is going to wake up with the title of President Elect. The reasons have to do with culture, history, tradition, mathematics, the structure of our electoral system, and the realities of the selection process as enshrined in the Twelfth Amendment – a piece of our foundational document which in my humble opinion is in serious need of amendment itself – and that’s where I’m ultimately headed.
This article is about why we are stuck in this binary system and what, if anything, we the people can do about it. This is a bit involved, but so is our process and the history behind it. The solutions are not simple, but a clear and cogent understanding of the facts and the history of how we got to where we are is essential if any of us are to make an informed decision about what we do in November, and how we fix this ugly mess in the long term.
What I am going to lay out here boils down to the following.
- The Twelfth Amendment essentially makes anything other than a two-party system impractical at best and (more likely) disastrous at worst.
- The Electoral College as established in Article II of the Constitution and as modified by the Twelfth Amendment favors entrenched, established political entities.
- The gerrymandering of Congressional Districts, practiced by both major parties (and which has benefitted both at various times in our history) exacerbates the distrust of government – and should the House be called upon to render a decision in a tie the result would most likely be devastating civil unrest.
- The solution to this will require major re-thinking of how we elect not only our Executives, but the way we elect the House of Representatives and perhaps the very structure of that body.
Let’s start with the Twelfth Amendment which specifies how the President and Vice President are elected. This amendment was ratified in 1804 in the aftermath of the contentious and bitter election of 1800 (more on this in a moment), and revises the original selection method established in the third clause of Article II Section I of the Constitution. Pay close attention to the parts underlined.
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. (Last sentence superseded by the Twentieth Amendment)
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
The current distribution of congressional districts (plus 3 from the District of Columbia) gives us a total of 538 electors, and as we just read it takes 50% of those plus 1 (270 electoral votes) to win. Should no candidate achieve this number of electors the House of Representatives decides the race between the top three vote getters with each state’s House delegation having one vote. (Seriously, you can’t make this shit up.) Among other things this means the lame-duck House that may have just been tossed out gets to choose the President. What’s more, states with tiny populations like Alaska, Montana, and Vermont have as much say in selecting the President as heavily populated states like California, Texas, and New York. If you think the dissatisfaction with the outcome of the 2016 primaries was intense or the decision in the 2000 “hanging chads” dispute was divisive, it should be pretty obvious that this situation would be a recipe for a huge national crisis given the current polarization of our politics.
Here’s where the fun begins.
Now, a brief look at history.
In a system dominated by two political parties the likelihood of an electoral tie (both candidates receiving 269 votes) is extremely low. It has really only happened once under the current system and that during a brief period where there was only one dominant party (Democratic-Republican). This was in 1824 with 261 electors up for grabs. The election of 1824 was a four-way race between Andrew Jackson, John Quincy Adams, Henry Clay and William H. Crawford. With none of the four achieving an electoral majority (pretty much a given with that many candidates in serious contention) the election was thrown to the House with Jackson, Adams, and Crawford being the top vote getters. Clay, left out of the race, cut a deal with Adams to be the Secretary of State if Adams were elected and used his influence in Congress to tilt the election to Adams even though Jackson had not only won more electoral votes, but an overwhelming majority of the popular vote (153,544 to Adams’ 108,740).
Think ugly politics is a recent development? Think again.
On one other occasion the House was called into the mix due to a dispute over the validity of electors in 1876. To make a very long but interesting story short (you can read the details of the compromise of 1877 here if you are so inclined) the House commission appointed to resolve the dispute awarded all of the disputed votes to Rutherford B. Hayes – igniting what came very close to being a second Civil War.
It is worth mentioning the one other time the Presidency was chosen by the house , which was the election of 1800. That race was decided under the original terms of Article II Section I of the Constitution where the largest vote-getter was elected President, and the runner up Vice President. Once again in a four way race the decision went to Thomas Jefferson.
In all of the above examples the popular fallout was disastrous. The decision in 1800 was the catalyst for the passage of the Twelfth Amendment subtly but significantly altering the election process and setting the stage for what ultimately evolved into our two-party system today. The extremely ugly side-deal between Clay and Adams in 1824 cast a cloud on the legitimacy of Adam’s presidency and resulted in Jackson winning by a landslide four years later, and in 1876 a new Civil War was only barely avoided by the compromise of 1877 with the echoes of animosity and distrust between the politics of the north and the south lingering to this day.
Next, let’s do some math.
Are you a burned Bernie Supporter, fed up with the shenanigans of the DNC? Are you a Republican who feels the soul of your party has been coopted by the unprincipled actions of the party elite or the clever machinations of a slippery smooth-talking charlatan? Are you a Libertarian or Green forced to choose between candidates whose philosophy you espouse or a nauseating compromise of principles? Do you long for a serious set of options?
I’m with you. Really . . . I’m truly with you. That being said, the math doesn’t work for us given the reality of how the Twelfth Amendment lines up the spreadsheet.
Consider this . . .
In the essentially binary system we have today a decision by the voting public (as represented by the Electoral College) is almost assured with few scenarios resulting in an electoral tie. Even the existence of minority parties like the Libertarians and the Green Party don’t matter much as electors are allocated on a “winner take all” basis  The realities of tradition and the power of the entrenched Republican and Democratic parties make it essentially impossible for a minor party candidate to achieve enough votes to win any electors. Even if there was a situation where, let’s say the Libertarian Gary Johnson was to win Utah as some have suggested might be possible this year, the resulting shift of 6 electoral votes would only make a victory for the Democratic party more likely and very slightly increase the odds of a disastrous electoral tie.
Putting aside the above, let’s assume that there actually was a strong enough movement to make one of the two minority parties a contender, thus creating a three-way race with all three parties in contention. This is not going to happen this year, there is far too much momentum (and dollars) behind the major parties and like it or not all of the cards are stacked in their favor. But for the sake of argument let us assume that we did have three parties in contention and to be realistic that each of the three parties had a roughly equal base allowing them to count on 15% of the electoral votes (roughly 45% of the total) leaving the remaining 55% up for grabs. In this scenario, if the two lowest vote-getters were able to amass just 54 electors each over and above their base – a very likely outcome – the decision would go to the House of Representatives with each state delegation getting one vote. At this time the Republicans hold a 33 to 14 advantage in state delegation majorities and would almost surely hand the election to the Republican candidate. The choice of the Vice President, with the Senate being split far more evenly, could result in an equally if not more contentious situation. Currently the Republicans control the Senate with a majority of 46 to 54 (Independents Bernie Sanders of Vermont and Angus King of Maine caucus with the Democrats and are counted with them for likely voting purposes.) While there is a the very real possibility that control of the Senate could pass to the Democrats this fall, it is the incumbent lame-duck Congress that would make these choices – once again setting the stage for widespread chaos and further erosion of faith in the fairness of our system.
In a race with four parties (or independent candidates) in serious contention only 9 or 10 additional electors would need to be amassed by each of the three lowest vote-getters to hand the decision to Congress and probably unleash an uprising the likes of which none of us have seen in our lifetimes – at least not in this country. I’d rather not go there and I think there are better alternatives.
Are you part of the problem – Or part of the solution?
I’ve talked a lot about history here – and history is important from the standpoint of historical perspective. It gives us context. Part of this context is the fact that the process we use to elect the President is a relic from a different time and a different reality, that being the reality of our nation as it existed at the end of the 18th and the early days of the 19th centuries.
Total US Population: 5.3 million
Voting Population: (“Free white males” over 21): roughly 1 million (Approximate number as 1800 census data did not clearly delimit those of voting age.)
Ballots cast in 1800 election: 67,282
America in 1800 was a fledgling nation experimenting with the then radical concept of self-government – the notion that government serves the will of and is answerable to the people. The concept of the presidency was not what it is today. The system used to select the holder of that office is simply no longer applicable, and the idea that this selection should ever be surrendered to a body that while elected, is subject to partisan loyalties over the will of the governed is no longer conscionable.
Fast forward to the twenty-first century. The United States of America is the most powerful and prosperous nation on the planet and the most powerful and prosperous nation in the history of human civilization. We are the world’s most diverse nation being made up of every race and nationality. The passage of the Fifteenth Amendment giving suffrage to those of all races, the Ninetieth giving suffrage to women, and the Twenty-sixth giving suffrage to those 18 and older has extended the power of self-government to almost a quarter of a billion people giving this country the ability to be the most democratically governed nation on earth – although sadly only about 55% of us exercised that right in 2012, a right for which so many have paid for at high cost, including the cost of their lives.
We live in a radically connected world that our founders could not have even dreamed of in the closing days of the 18th century. This connection presents opportunities, and it presents challenges.
The bottom line on this lengthy post is that if we are going to change the system that we have we need to own the reality of how it works, and figure out how we work within it as we are working to change it. The urgency of this transcends politics and party identity. The moneyed powers behind the two entrenched party systems rely on our staying divided in order to maintain control. When we fall for this, when we define ourselves as Democrats or Republicans, conservatives or liberals or progressives first, forgetting that we are all Americans and all in this together we are playing into the hands of those who are deeply invested in the status quo.
The recipe for changing our system is a Constitutional Amendment which accomplishes the following.
- Replaces the third clause of Article II Section one of the US Constitution and the Twelfth Amendment.
- Abolishes the electoral college in favor of a system honoring the principle of one person, one vote. 
- Prohibits giving official or favored status to any political party, and eliminating the corrupt system of publicly funded political primaries.
- Provides for a run-off system in the event that no individual achieves a clear majority, and removes the unfair and dangerous possibility of a lame-duck Congress disenfranchising the electorate.
- Places all elections for national office which impact the nation as a whole, including those for President, Vice President, and Congress under a uniform set of federal standards, and eliminates the ability of states to enact laws advancing voter suppression.
- Places uniform non-partisan standards on the drawing of congressional district boundaries eliminating the practice of gerrymandering.
- Clarifies the intent of the Free Speech clause of the First Amendment as applying to natural persons, not corporations thus invalidating the Supreme Court ruling in Citizens United v. FEC.
- Provides for a fair, publicly funded campaign system in which large private donations are prohibited.
- Requires federally licensed broadcast media to provide equal time to all candidates who meet reasonable standards of voter support.
In order to achieve the above, we need to focus on more than the Presidential race. Yes, having a President in the White House who is willing to support real election reform is important – but the President has no direct say in the amendment process. That role is left to Congress and the state legislatures, and that is where we need to focus.
We have the ability, using the power of social media and personal connections to start this change. It is not happening between now and this coming November – it’s a much longer term process – but the time to start is now. Become part of a local effort to elect legislators in your state who support real election reforms. Be a voice demanding that candidates for the House and Senate state their positions on election reform, and encourage an environment where THIS becomes an essential criterion for voter support.
In the meantime, I encourage you, if you are considering staying home this November to re-think this. There is a difference between the two candidates for President, and the down-ticket elections are just as important if not more so. This includes both the elections for your Congressional district, any Senate seats that are up for election, as well as elections for your state legislature.
If we are to move beyond a two-party system we need to stop thinking in terms of party, and we need to change the transmission.
It’s a big job – but this two-speed is getting pretty clunky.
Are you in?
Footnotes from text: