One thing that we can say about this election is that the odds of a significant third-party candidacy are at their highest since 2000. Maybe it will be Michael Bloomberg. Maybe it will be a conservative who can’t stand Donald Trump. Maybe it will be Donald Trump.
With this in mind, we should pause to consider how poorly the Twelfth Amendment was designed to handle situations where no presidential or vice-presidential candidate receives a majority in the Electoral College. For example:
The House of Representatives must choose from the top three presidential candidates, but in this ballot each state gets one vote and a majority of the states is required to win. (The assumption here is that you need a majority of a state delegation to cast a vote.) This means that the member from Delaware gets the same vote as 28 Representatives from the California delegation. It also means that states with equal divided caucuses may be unable to cast a vote, or that an illness that prevents some member from voting could swing a state’s vote. Egads.
Next, the Senate gets to choose the Vice-President by an ordinary majority vote but only from the top two candidates. [Query: Could you filibuster this? Maybe.] This means that the President could get saddled with a Vice-President from the other party. Worse still, the third candidate for President cannot get his or her running mate. (Basically, the Vice-President would have to resign and then allow the new third-place President to nominate a new one.)
This creaky machinery has not been used since 1837 (when the Senate had to pick the Vice-President). Let’s hope we don’t need it next January.