How to end up with Pence or Kaine in the White House: Suspend the 12th Amendment

This semi-tongue-in-cheek article was first published at the American Spectator.

Dissatisfaction with the presidential nominees of both major parties is at record levels, and Donald Trump and Hillary Clinton continue to make embarrassing missteps. By the time the Electoral College meets to choose the president on December 19, the dissatisfaction may be overwhelming.

Both Republicans and Democrats may be unhappy with their choices, but they find themselves in the classic “prisoner’s dilemma.” Neither side dares withdraw support from its nominee for fear of electing the other party’s candidate. Many Republicans support Trump only because they dislike Clinton even more; many Democrats support Clinton only for fear of Trump.

Attitudes toward the vice-presidential candidates — Indiana Gov. Mike Pence and Sen. Tim Kaine (D-VA) — are quite different. Both are widely acceptable, and both have résumés that would render them credible presidential candidates. Neither, however, is on the presidential ballot.

In theory, the Electoral College can choose a person as president who was not on the presidential ballot, but as a practical matter, this is improbable. Most states require electors to vote for the presidential candidate receiving the highest number of popular votes in their states or congressional districts. State lawmakers are unlikely to free their electors because lawmakers are trapped in the same prisoner’s dilemma afflicting individual voters.

Several months ago, I suggested that if Libertarian Gary Johnson carried enough states to deny both Clinton and Trump an Electoral College majority, the House of Representatives could select him as president. Johnson was a successful two-term governor and is generally scandal-free. Although my idea is garnering discussion, it depends on some unpredictable contingencies.

Another path for those who support neither Clinton nor Trump would be to partially suspend the Constitution’s 12th Amendment and revert, this year only, to the original process for electing the president.

The 12th Amendment was ratified in 1804. Its final sentence supplied qualifications for the vice president, which the original Constitution had omitted. The rest of the amendment changed election rules that had led to deadlock in the presidential contest of 1800.

The original Constitution specified presidential electors would cast ballots for two candidates without designating which candidate the elector favored for president or for vice president. When Thomas Jefferson and his running mate, Aaron Burr, each received 73 electoral votes, Burr claimed that he had as much right to be president as Jefferson. The Constitution required that a tie be resolved by the House of Representatives, which elected Jefferson.

The 12th Amendment’s principal change was to require presidential electors to designate separately their choice for each office. Most people have been pleased with the revised system since it was passed more than 200 years ago, but those seeking to find an alternative to Clinton and Trump might support a temporary change via an amendment adopted pursuant to the Constitution’s Article V.

Because there is a limited amount of time between now and the November election, any proposal would have to come from Congress rather than from an interstate convention. Congress may offer an amendment providing in substance that, “The 12th Article of Amendment, the final sentence excepted, is hereby suspended for a period of one year from the ratification of this amendment.” Congress could add a time limit for ratification.

Next, Congress would have to specify whether state conventions or state legislatures are the ratifying bodies. Because of time constraints, only the state legislative method is practical, and in most states, lawmakers would have to be called into special session. But if 38 legislatures approved Congress’s proposal, it would become part of the Constitution.

Although amending the Constitution is usually a long and contentious process, in the Internet Age, it can be completed within a few weeks if the public consensus is strong enough.

Under the suspension amendment, voters in each state would choose their presidential electors as they do now. On December 19, each presidential elector would cast ballots for two persons. Democratic electors would vote for Clinton and Kaine and Republican electors would vote for Trump and Pence. But the electors would not designate which person they favored for which office, and in all probability each candidate would receive the same number of votes as his or her running mate.

This would send the election into the House of Representatives, which would then have the option to elect Pence or Kaine as president. The remaining candidate with the highest number of electoral votes would become vice president.