Legal Commentary

Sandy Levinson and others have, in recent years, been calling attention to what they regard as the Constitution's failures.  One such failure, it is often contended, is the Electoral College.  Well, today a good friend of mine sent in some thoughts about a "fascinating, and utterly absurd" electoral (theoretical) possibility . . . .

He writes:  "There is a not crazy scenario where the electoral college ends up 269-269:  Take the Bush-Kerry map and add to Obama IA, NM, and NV . . ..  After the election, the Dems will have a majority in something like 28 or 29 state delegations, and would need 26.  Conservative Dems in MS will not vote for the Dem.  It'd be interesting to see what Stephanie Herseth in SD and Earl Pomeroy in ND would do.  They are both partisan Dems in very red states with only one seat.  Or Mike Castle in Delaware, Republican in one-seat Delaware.  I suspect that the Dems could engineer it so that they give enough conservative Dems a pass to remain at 26 and bribe some who would lose their seats with cabinet posts, etc. . . .

There are, by the way, one or two states that would have equally divided delegations and the GOP would have majorities in something like 20 or 21 delelgations.

But here is an interesting scenario:  If they were unable to get 26 state delegations to pick a nominee, there's still the question of the VP.  That's just a straight vote in the new senate, but before Jan 20, so Dick Cheney has the tie breaking vote.  So, the Dems need 51 votes and the GOP needs 50 votes.  Let's say that the Dems pick up 4 seats.  Not including Lieberman, they would have 54 seats and would be able to yield 3 votes and still have 51.  I'm guessing that it's easier for a red state senator to vote for Obama than a red district house member, since only a third face re-election in 2 yrs and it's just a vote for VP.

Here's another twist:  the 12th Am provides that a quorum for these votes consists of at least one member of 2/3s of the states for the pres vote.  Not an issue because the Dems have at least one house member in at least 38 states.  In the Senate, I don't think this would be subject to filibuster.  The 12th Am seems to speak in mandatory terms about there being a vote and sets the majority vote req't.  And any question would be settled by a ruling from the chair (by Cheney), which could be overturned by 51 votes on the floor, which the Dems will have.  But, under the 12th Am, 67 senators would be required for a quorum.  So, the GOP could duck and hide to prevent a quorum.  However, under Senate rules, the Maj Leader has the power to invoke a live quorum call, which empowers the sergeant at arms to arrest and detain senators who don't show up.

Then, there would be the question of what criterion a member or senator should use, and presumably they would pick whatever worked.  Nationwide popular vote?  Vote in your district or state?

Fascinating, and utterly absurd."

Thoughts?