The Twelfth Amendment? Really?

If you live in the US, you may have already heard that there is buzz going around that Donald Trump will stay in office by way of the Twelfth Amendment. I had not seen this discussion until yesterday, when a friend, whose politics I did not know and whom I never considered a Constitutional law expert, posted “According to the 12th Amendment to the Constitution, it’s far from over!” Now after reading that post, I was just as confused about her politics—was she crowing that her candidate would take back what was stolen or was she warning everyone that the Twelfth Amendment would allow Donald Trump to steal the election? One thing that became clear with the conversation that followed was that a number of people thought there was something in the Twelfth Amendment that no one else was paying attention to that would allow Trump to remain in office.

Not being a Constitutional scholar myself, I looked up the wording of the Twelfth Amendment. For those of you like me who might mix up which amendment is which once you get beyond the heavy hitters, the Twelfth Amendment was an 1804 amendment to the procedure set out in Article II (Section 1, Clause 3)  of the US Constitution for selecting the President and Vice President of the United States. The purpose of this amendment is the reason I was initially confused with my friend’s statement: The amendment’s purpose was merely to adjust the way in which the Vice President was selected, after it became obvious that the former system didn’t really work. Article II had stipulated that each elector, or member of the Electoral College, would vote for two candidates for President. The person with the most votes would become President and the person with the second-most votes would become Vice President. This caused, in the nascent country, a lot of squabbling between a President and Vice President of opposing parties. The Twelfth Amendment sought to address this problem. Technically, that means that everything involved in the Presidential election process is now dictated by the Twelfth Amendment, which reads, in whole (I’ve added bold):

When I asked my friend what she meant, she answered that it was too complicated, so at this point, I am starting to guess. I think what my friend is referring to is the part of the amendment I’ve bolded above. We all know the House of Representatives gets to choose if no one has a clear majority. That wouldn’t seem to be an issue until you read the sentence that says each state now gets one vote, not the number of votes of its members. Right now, if you look at the map (and assume North Carolina will stay red and Georgia will stay blue), Donald Trump has 26 states and Joe Biden has 24 states plus the District of Columbia.

But think about all the things that would have to happen for it ever to get to this point. If Georgia and North Carolina are won by Biden and Trump respectively, in the final analysis, Biden would have 306 electoral votes and Trump would have 232. Donald Trump, or his representatives, have filed multiple lawsuits in 5 states: Pennsylvania, Arizona, Michigan, Nevada, and Georgia, along with some smaller challenges in states that won’t really decide the election. He needs to take 38 electors from Joe Biden for it to make a difference. That means his lawsuits in at least 3 states need to alter the outcome of the elections in those states to the point where it makes a difference, which is not likely to happen. In the biggest prize, Pennsylvania, for example, the Trump camp has filed a lawsuit against the state’s procedure that allows ballots to be counted up to three days after election day provided they were postmarked by election day. This seems like a baseless lawsuit, since states have a long tradition of counting absentee ballots posted by the day of the election even if they weren’t received by then. And statistically, it usually doesn’t matter, which is how states are called before all the ballots are counted. In Pennsylvania, approximately 10,000 votes were received and counted in the three days after the election. Let’s say, by some statistical fluke, all these votes were for Biden and the courts sided with Trump and threw them out. Right now, Biden leads in Pennsylvania by over 60,000 votes, so throwing out those 10,000 ballots would at most shrink that lead to 50,000.

But there is at least one other lawsuit in Pennsylvania and a number of suits in other states around the country. So it is statistically possible, if highly unlikely, that Donald Trump would win those lawsuits and those states. Let’s say, for illustrative purposes, that his suits mean that he won Pennsylvania, Arizona, and Michigan. He would now have 270 votes to Biden’s 259. There would probably be legal challenges brought by Democrats, but Trump would have enough votes, barring faithless electors, to win the election—but with no recourse to the House of Representatives. By my reckoning, the only combination of battleground states where it could work would be Pennsylvania, Arizona, and Nevada. If Trump suddenly won legal challenges that were big enough to win those three states, neither candidate would have the requisite 270 votes and it would go to the states. If he won one more state, or any other combination, either he or Biden would have at least 270 votes. So what are the odds that Trump would win Pennsylvania, Arizona, and Nevada, and no other state? About the same as my winning the Euromillions lottery tonight. Michigan already dismissed one lawsuit, and the campaign promptly filed an additional suit. In Arizona, the Trump team’s initial claims of fraud were already debunked, causing them to change tacks and suggest that “good-faith errors” may have been made. A number of lawsuits alleging different problems in different states, have  already been dismissed. Each of these suits has to go through state legal challenges. Then, if the Trump team doesn’t get the verdicts it wants, it would have to persuade the US Supreme Court to hear multiple cases on different facets of state voting procedure.  Since the Supreme Court decides which cases it will hear, it seems highly unlikely that the Supreme Court will choose to hear cases in just the right three states to enable this scenario to unfold. So, to recap, it’s very, very unlikely that Donald Trump’s lawsuits will succeed, but should they succeed, it’s very, very unlikely that they will result in just the right new combination of electors that we are suddenly thrust into a situation whereby each state gets one vote for President.

My friend eventually made it clear that she was against Donald Trump’s staying in office, so her belief that the 12th Amendment would allow him to do so wasn’t spurred by a desire for him to do it. Why is she so sure the entire election process will be overturned? And why are Trump supporters so sure that widespread fraud took place and Donald Trump will eventually be victorious? That’s an easy one: Donald Trump and his enablers. What is happening now is precisely why the man is unfit to be President of the United States. Theories have been floated about why exactly he still refuses to concede and keeps tweeting about “widespread voter fraud.” Perhaps it’s because he’s solidifying his brand for post-election engagements. Maybe he is worried about future legal battles. Or maybe, and this is the one I think most likely, his ego won’t let him stop stirring his base. He needs that adulation. He needed rallies in the midst of a pandemic. He’s addicted to his MAGA-hat-wearing fans screaming his name. A friend of mine who voted for Trump said before the election that she knew he was boorish and childish, but she firmly believed he “loves his country and wants to do what’s best for it.” I hope she has rethought that stance now. He has thrown into doubt the entire electoral process and has made it almost impossible for half the electorate to support or believe the next President of the United States. He’s also done quite a bit of damage to the Republican Party in the process. I am not saying his legal battles, at least where there’s a real question, should end. I’m saying his rhetoric and his fomenting of rage needs to end before he destroys the entire system.

Back in the 1970s, after the Watergate break-in was revealed, those of us alive at the time thought Richard Nixon and the people around him had damaged the institution he was supposed to serve. But one of the tragedies of the entire break-in was how little it actually affected the outcome of the election. In 1972, Nixon won in 49 states, with 520 electoral votes, while his opponent, George McGovern, won only in Massachusetts and the District of Columbia. Nixon won over 47 million votes to McGovern’s 29 million. However we now see Nixon and his dirty tricks, it was clearly the will of the people that he serve a second term. Yet when he faced a long impeachment battle for his role in the Watergate break-in, he resigned:

Granted, this may have been self-serving, but it was also better for the country. The longer Trump encourages dissent and mistrust, the less likely we will ever be one country again. I’d said before the election, when people were bringing up the legal challenges Trump would face upon leaving office, that Biden would do well to pardon him, for the good of the country, so we could move forward. I was thinking of Gerald Ford’s pardoning of Richard Nixon, for arguably greater crimes against the country. Whatever legal challenges Trump faces, it would be better for them not to be played out in public, I thought. Now I’m not so sure. His behavior since the election makes me think that unless he is made to answer for any crimes, he will continue to encourage the divisiveness and anger of a large portion of the populace. He didn’t create the divisions, but he certainly widened them. Let’s remember Gerald Ford’s inauguration speech after Nixon resigned, “My fellow Americans, our long national nightmare is over … Our Constitution works; our great Republic is a government of laws and not of men.” I hope that after Joe Biden takes office, most people will still believe that our Constitution works.

3 thoughts on “The Twelfth Amendment? Really?

  1. There are many that seem to be of the opinion that if they wish it, it shall come to pass. Nice explanation of why those know nothings that think or even say without thinking that the 12th amendment is going to keep Trump from being walked out of the White House on 20 January are sorely mistaken! I thought there was a QAnon connection as well – I saw something the other day and immediately believed it…

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  2. Yes, but it’s a difficult process without a clear supermajority of states wanting to do so. It’s not the H of R that’s the problem, it’s the way the voting is configured, 1 vote per state, that only increases the already existing imbalance.

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