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I was thinking about a scenario that looks like this:

  1. Clinton wins all states she won in real life, plus Michigan and Pennsylvania. She gets 1% more votes than she really did.
  2. McMullin wins Utah. Though Clinton has a plurality in both the popular vote and Electoral College, she has a majority in neither, and the second one matters.
  3. In the House, McMullin wins some votes from Republican Congress members. Clinton again has a plurality, but not a majority.

This is an event where no candidate gets 270 votes and conflict draws votes away from the would be winner. If the House and Senate cannot agree on president and vice president in such an event, who becomes the next president here? Is there a runoff? Would there be no president for the next 4 years? The House would have to pick from the top 3 in electoral votes. The Senate however must choose from the top 2 candidates. McMullin would fall in that category as number three. Would Tim Kaine serve as president?

divibisan
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  • The Senate is unlikely to be unable to decide as it only gets to choose from the top 2 candidates for Vice President, who would then act as President until the House would decide the President, per the 12th Amendment – Just Me Jul 30 '20 at 18:37
  • Let's say that it picks Kaine because he is in the top 2. –  Jul 30 '20 at 18:38
  • Well, your question is still possible - there are probably scenarios where the Senate would not be able to select a Vice President. I was just commenting that it's not a likely scenario at all because of the Senate being limited to choosing between just the top two Vice Presidential candidates. But in the case the Senate were to pick Kaine, Kaine would serve as President until the House selected the winner. – Just Me Jul 30 '20 at 18:40
  • Wouldn't the House be unable to do so because it is deadlocked? –  Jul 30 '20 at 18:45
  • @Utah - Eventually, the House would either come to a decision, give up and just accept the VP as now-the-President, or their term would expire in two years at which point it becomes moot. It's an interesting question whether the incoming House after that would get to pick the question back up, or whether it'd just be left unanswered. – Bobson Jul 30 '20 at 22:02

2 Answers2

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In this situation, the normal rules for Presidential Succession apply

Under the Presidential Succession Act, 1947, if neither a President nor a VP should be elected, then the Speaker of the House of Representatives would serve as Acting President until a President or VP is elected, and failing that, it would go to the President Pro Tempore of the Senate.

Beyond that, it goes through the various Cabinet secretaries. Unlike the President, whose term expires on 20 January, the Cabinet secretaries have no fixed term. So if the Secretary of State hadn't resigned his post by that point, and there were no Speaker or President Pro Temp, then he would take over as Acting President (and so on down the list).

Joe C
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  • Mind you, this has the caveat that this line of succession (which had versions in effect as early as 1792) has never been exercised or legally tested, as we've never needed anyone other than the VP to step into the role. We came close once or twice, where we had a president with no VP for a time for example, but it's never before gone further down the line. – zibadawa timmy Jul 31 '20 at 14:02
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The Senate must choose between Paine and Pence for VP. Since the Senate has a clear Republican majority, they choose Pence.

The House chooses between Trump, Clinton and McMullin. The house votes by state, not by member. 26 votes are needed for a majority. The balance in the house is such that a clear majority of states have a majority of Republican representatives. Even if McMullin attracts a few individuals, they will be under intense pressure to return to the Republican fold if, after an initial vote, no candidate has 26 states. The result is a Trump majority, eventually.

If the House does remain locked, then the VP, chosen by the senate, takes his/her oath and becomes acting president until such time as the House can get round to picking Trump officially.

James K
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