Minor Party Candidates Part One: Scenarios Involving Minor Party Candidates

INTRODUCTION: VOTING FOR MINOR PARTIES — PART ONE

With the immense unpopularity of both Hillary Clinton and Donald Trump [see blog], many citizens are considering different voting options. For some this may mean writing someone in or staying home entirely. For others, this may mean voting for a third-party candidate who is on their ballot or who gained official write-in recognition in their state. In this article, I will provide a brief overview of the effect that voting third party may have in this election, and how certain minor party candidates have fared in the past. In my companion article, which is part of my series of blog posts on election issues and immigration [see blog], I will examine the immigration positions of the four minor party candidates with the most ballot access for the November election [see blog]. To jump to my section on a particular candidate, please see the following list:

• Gary Johnson (Libertarian Party) [see section]
• Jill Stein (Green Party) [see section]
• Darrell Castle (Constitution Party) [see section]
• Evan McMullin (No Affilation) [see section]

CAN ANY OF THESE CANDIDATES WIN?

The answer to this question, in reality, is no. But for the sake of examining some interesting points about how the Presidential election works, let us examine the scenarios in which it could happen.

RULES UNDER THE ARTICLE II AND THE TWELFTH AMENDMENT

There is only one scenario in which a minor party candidate could realistically (loosely speaking) win. Under the Twelfth Amendment to the U.S. Constitution, the election will be sent to the House of Representatives in the event that no candidate obtains a majority of the electoral vote. Before continuing, let us examine the pertinent passages of the Twelfth Amendment of the U.S. Constitution, which rectified deficiencies in the election process in Section I of Article II of the U.S. Constitution (these flaws were evident in the tumultuous election of 1800, where my favorite President, Thomas Jefferson, won in the U.S. House against his running-mate, Aaron Burr):

“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.

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.”

It is important to note that this occurs if neither candidate wins a majority of the electors, not a majority of the popular vote. In such an event, the U.S. House of Representatives would consider the top three electoral vote-getters for President while the Senate would choose between the top-two for Vice President. Since the ratification of the Twelfth Amendment, only the election of 1824 was resolved by the U.S. House. The House would decide the Presidential election based on House delegations, not based on a straight up or down vote of all House members. This means that the vote of Wyoming's one representative would be worth one state delegation, while a vote of 19-8 among the members of the New York delegation would also be worth one vote for the candidate with the majority. If a majority of House delegations could not agree on a candidate, the Vice Presidential nominee (under the Twelfth Amendment, only the top two electoral college vote-getters for Vice President are eligible in the House) who won the vote of House delegations would become President.

Following these rules, in order for someone other than Clinton or Trump to win (granting no one else has a path to 270 electoral votes), a minor party candidate would have to win at least one elector and both Clinton and Trump would have to fail to reach 270 electoral votes for the matter to be resolved by the House. Additionally, with the House being constituted of only Democrats and Republicans, it would seem to be unlikely for a person who is not a member of either party to carry the requisite number of House delegations. If anyone were to emerge as President other than Clinton or Trump in such an unlikely scenario, it would more likely be Tim Kaine or Mike Pence in the capacity of “Acting President,” which is provided for in the Twentieth Amendment to the U.S. Constitution, than it would be Evan McMullin, Gary Johnson, or another third-place finisher in the Presidential race.

HISTORY OF MINOR CANDIDATES CARRYING STATES

There are two ways in which someone other than Clinton or Trump could win at least one electoral vote. First, someone else could actually win a state's popular vote. However, it is very uncommon for a candidate who is not a Democrat or Republican to carry a state. Since the dawn of the twentieth century, candidates other than Democrats and Republicans have won states only in the following four elections:

• 1912 — Theodore Roosevelt (Progressive): 6 States (second-place finish) [Wiki link]
• 1924 — Robert LaFollette (Progressive): 1 State [Wiki link]
• 1948 — Strom Thurmond (Dixiecrat): 4 States [Wiki link]
• 1968 — George Wallace (American Independent): 5 States [Wiki link]

The 1960 election [Wiki link] between then Senator John Kennedy and then Vice President Richard Nixon provides an interesting case study. In that election, no third candidate carried a state. However, voters in several southern states elected Presidential electors directly rather than voting for the candidates. In Mississippi and Alabama, a majority of the electors chosen were Democrats who were not pledged to Kennedy, and who ultimately voted for Virginia Senator Harry Byrd (this includes the entire slate of Mississippi electors). Because of the closeness of the elections and the presence of a third candidate taking electoral votes, the 1960 and 1968 elections were arguably the two times that we came closest in the last century to having an election resolved by the U.S. House of Representatives. Interestingly, both elections involved Richard Nixon, who would lose to Kennedy in 1960 but defeat Hubert Humphrey and George Wallace in 1968. Ironically, it was Nixon's third election in 1972, where he won by one of the widest margins in U.S. history, where his infamous Watergate Scandal occurred.

1992 is also a noteworthy case. In that election, Ross Perot secured over 19% of the popular vote in a three-way race against then-incumbent George H.W. Bush and Bill Clinton. However, despite having the strongest popular vote performance for a third party candidate since Theodore Roosevelt in 1912, Perot failed to carry a single state. Perot did finish second in three states, however, making him the only third party candidate to finish ahead of a Democrat or Republican in a state race since George Wallace in 1968.

THE SURPRISING STRENGTH OF EVAN MCMULLIN IN UTAH

At this point, independent candidate Evan McMullin is performing remarkably well in Utah, where both Clinton and Trump are even more unpopular than they are in most of the rest of the country. A survey taken by Y2 Analytics in Utah from October 10-11 placed McMullin in third place in Utah with 22%, but within the +/- 4.2% margin of error from both Clinton and Trump polling at 26%.[1] A survey taken by Monmouth from October 10-12 also had McMullin in third place, this time at 20% and behind Clinton at 28% and Trump at 34%.[2]

There would be some irony if McMullin were to make a successful stand in Utah. In 1912, the last election where someone other than the Democratic nominee or the Republican nominee finished in the top two, former President Theodore Roosevelt carried six states to the two states carried by the incumbent President and Republican nominee, William Howard Taft. One of Taft's two states was, in fact, Utah. In 1912, Utah was one of the two states loyal to the Republican, but in 2016, it may well end up being the most surprising defection from the Republican tent.

Furthermore, as I discuss in the companion article, it is worth watching Gary Johnson's performance in New Mexico. However, Johnson appears to be significantly less likely to win any state than McMullin does to win Utah.

FAITHLESS ELECTORS

The second way a non-major party candidate could win electoral votes is by way of what is called a “faithless elector.” It is not known by all that our President and Vice President are not determined by the popular vote, but by the electors of the Electoral College. It was for this reason that George W. Bush carried the 2000 Presidential election despite finishing second in the popular vote to Al Gore. In certain states, electors are allowed to cast their votes for someone other than the person who carried their state. While there have been numerous instances of such “faithless electors,” the last time one cast a vote for someone (other than the Vice President) of one of the major party tickets was in 1972. In 1972, one elector cast his vote for the first ever Libertarian Party candidate for President, John Hospers (that elector, Roger MacBride, would go on to be the Libertarian Party's presidential nominee in 1976) [Wiki link].[3] Despite John Hospers having had fewer than 4,000 votes nationally, he remains the only Libertarian Party candidate to win an electoral vote for President. With Richard Nixon winning the electoral vote over George McGovern 520-17, it can be said that John Hospers did not fare much worse than the Democratic nominee that year, George McGovern., in the Electoral College.

BUT BACK TO REALITY…

While these scenarios are fun to ponder, the reality is that it is beyond exceedingly unlikely than any of them will actualize. Even in a very close election, it is improbable to expect that no candidate procures 270 electoral votes, albeit George W. Bush did only inch over the number with 271 in 2000. Furthermore, the election is looking less and less like a 2000-esque affair, and more and more like a Hillary Clinton romp, with her lead in the polls ballooning since tapes of Donald Trump making lewd comments and a stream of allegations of sexual misconduct have proliferated. While those hoping for chaos may see hope in Evan McMullin's strong performance in Utah, the mere fact that McMullin may win a single state that Republicans often carry by well over twenty points is ultimately a sign of Clinton's strong position rather than a sign that we are headed for a close election.

The political prognostication site, FiveThirtyEight, addressed scenarios involving McMullin and the race going to the U.S. House as we just did. In that article, written on October 13, the site's election model saw a 0.4% chance that Clinton and Trump will end up deadlocked with 269 electoral votes apiece, and a 1.7% chance (or 2.4% depending on which version of the model you use) that Trump wins 269-275 electoral votes with Utah.[4] This scenario would be a prerequisite to McMullin's potential victory in Utah sending the election to the House of Representatives.

CAN A THIRD PARTY CHANGE THE ELECTION WITHOUT WINNING?

In a close race, a third-party candidate may be able to swing an election. It is quite possible that in 2000, where the election came down to a paltry 537-popular vote margin in Florida, the presence of the Green Party candidate, Ralph Nader, may have swung the election to George W. Bush. Nevertheless, 2000 was a once-in-a-lifetime election (let us hope 2016 is as well), and it is unlikely that the presence of minor party candidates will lead to a different person winning the election than if it was only contested between Clinton and Trump.

CONCLUSION

There are many reasons that one may have for choosing to vote for a candidate or to not vote for a candidate in an election. If one is either a fan of Hillary Clinton or Donald Trump, or has as his or her top priority stopping one or the other, a vote for a third-party candidate makes little sense. However, a minor party alternative may provide people who feel that they cannot in good conscience vote for Clinton or Trump a way to vote for someone in the election. In the second part of this post, I examine the four candidates' views on immigration issues to give readers a better idea of what they may be voting for on one very important issue [see blog].

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. Romboy, Dennis, “Poll: Trump falls into tie with Clinton among Utah voters,” desertnews.com, (Oct. 11, 2016)
2. Monmouth University Polling Institute, “Trump has Narrow Lead But Clinton and McMullin are Hot on His Heels,” monmouth.edu/polling-institute, (Oct. 13, 2016)
3. Saxon, Wolfgang, “Roger MacBride, 65, Libertarian and 'Little House' Heir, Is Dead,” nytimes.com, (Mar. 8, 1995)
4. Morris, Benjamin, “How Evan McMullin Could Win Utah and the Presidency,” fivethirtyeight.com, (Oct. 13, 2016).

Lawyer website: http://myattorneyusa.com