The Constitution Makes A Successful Third-Party Presidential Run Unlikely

The way we elect Presidents make it unlikely that a third-party candidate like Howard Schultz could ever actually win the the Presidency.

As the largely negative reaction to the announcement by Starbucks founder Howard Schultz continues, Sam Feist explains why a third-party candidacy for President is largely doomed to fail:

There are two scenarios that could unfold as a result of a strong third-party challenger and both of them end up with Trump’s re-election because of one major factor: the Constitution of the United States.

With the elections of 2016 and 2000 still fresh in the minds of a lot of voters, most Americans have a basic awareness of the Constitution’s rules for how presidents are elected: whoever wins the majority of electoral votes becomes president. Today, there are 538 votes in the Electoral College based on the make-up of Congress (which has 435 House members and 100 senators) plus three more votes for the District of Columbia. The candidate who wins 270 or more electoral votes — a simple majority of that 538 — will win the presidency.

What is less well understood is the procedure for choosing a president when nobody wins that 270-vote majority. The Constitution includes a clear remedy: the president is chosen by the House of Representatives. But instead of 435 members of the House simply voting to choose the president, each state’s delegation votes as a block. That means the 53 House members from California all combined have the same number of votes as the lone House member from Alaska: one.

Even though the new 116th Congress has a Democratic majority in the House, Republicans actually control more state delegations. Currently, 26 states have Republican-majority delegations, 22 states have Democratic-majority delegations and 2 states are tied. So if the current House of Representatives were to select a president with each state having one vote, the Republican would surely win.

Imagine the following hypothetical Electoral College outcome on Election Day 2020: Republican Donald Trump with 130; Independent

Howard Schultz with 190; and the Democratic nominee with 218. Despite Trump winning the least number of electoral votes in this scenario, if the makeup of Congress remains the same, the winner of the presidency would be Trump.

This is why Democrats are so concerned about an independent candidacy by a moderate Democrat like Schultz. There are two principal scenarios in which Schultz can help re-elect Trump.

The first scenario is the “John Quincy Adams” scenario, which mimics the hypothetical scenario above but is notable because it actually happened. In the election of 1824, Andrew Jackson won the popular vote and 99 electoral votes, which was more than any other candidate. John Quincy Adams came in second place with 84 electoral votes. Two other candidates earned 41 and 37 electoral votes, respectively. Because of the electoral votes won by the third and fourth place candidates, no single candidate had won the majority of votes needed for election (it was 131 electoral votes at the time). Ultimately, the House, with each state casting one vote, chose Adams to be president, even though he had earned fewer popular votes and fewer electoral college votes than Jackson.

The second scenario is the “Ralph Nader” scenario in which a left-of-center candidate doesn’t actually win any Electoral College votes, but siphons off votes from the Democratic candidate thereby helping the Republican to win. This is what happened in 2000 as liberal Green Party nominee Nader received 97,488 votes in Florida, which was more than enough to deprive Vice President Al Gore from winning the state. Gore went on to lose Florida to then-Texas Gov. George W. Bush by only 537 votes and the Florida loss cost Gore the presidency in the Electoral College. Some argue that Green Party nominee Jill Stein may have done the same thing to Clinton in 2016. Stein received more votes in Wisconsin, Michigan and Pennsylvania than the margin of Clinton’s loss in each of those states. In other words, if all of the Stein voters had instead voted for Clinton, then Clinton would have won those three states and would have been elected president. (​Some have suggested that Texas businessman Ross Perot hurt the candidacy of then-President George H.W. Bush when he pulled nearly 19% of the popular vote in the 1992 election. Exit polls and pre-election polls showed he didn’t do that. Instead, Perot pulled an even amount of support from Bush and then-Arkansas Gov. Bill Clinton, who won the three-way race.)

(…)

As much as Americans may say that they desire a viable third-party option, the Founding Fathers designed the Constitution in a way that makes it almost impossible to have three viable parties competing in a presidential election without the House getting involved. If the make-up of the House is similar in 2020 and three candidates divide up the Electoral College, then the result will likely yield a Republican president. And, right now, that’s probably not the result those Americans seeking another option are hoping for.

The “John Quincy Adams” scenario as Feist calls it has actually happened twice in American history. In addition to Adams’s election in 1824, which proved to be so controversial that it essentially led to the end of what was left of the Federalist Party and the birth of the Democratic Party four years later when Jackson defeated Adams in his bid for re-election, it also occurred a quarter century earlier. The Election of 1800, which was ostensibly between Thomas Jefferson and incumbent President John Adams, led to a result where Jefferson had 73 Electoral Votes and Adams had 65 Electoral Votes, meaning that Jefferson and his ostensible running mate Aaron Burr both had 73 Electoral Votes, meaning that the election was thrown into the House of Representatives due to the tie vote between Jefferson and Burr, who were both members of the same party. In any case, it took the House of Representatives 36 ballots to select Jefferson as President due largely to the political maneuvering of Alexander Hamilton, who preferred his political rival Jefferson over his personal enemy Burr and urged Federalist Members of Congress to back the Virginian. This mess led to the adoption of the 12th Amendment, of course, but it was only 24 years later that yet another election into the House. Since then, we’ve fortunately not come close to such a situation but it isn’t hard to see how a strong third-party challenge that resulted in an independent candidate winning even just a handful of Electoral College votes resulted in throwing the election into the House. For the reasons Feist notes, the result would be utter chaos and, most likely, would mean the re-election of President Trump.

As I noted yesterday, though, the “Ralph Nader” scenario that Feist cites is actually the more likely outcome of a candidacy like Schultz’s. In that scenario, Schultz would just need to draw enough votes from one candidate or the other, or both, to cause a state that otherwise would have gone for a Democratic or Republican candidate to flip to the other side. This, arguably, is at least part of what happened in the 2016 election where more than 130,000 people in Wisconsin, Michigan, and Pennsylvania voted for Green Party nominee Jill Stein in states where a change of a mere 77,741 votes would have resulted in a Clinton victory in the Electoral College. Granted, there are probably many people who voted for Stein — and Libertarian Party nominee Gary Johnson, who received more than 425,000 votes in these three states — who would not have voted had she not been on the ballot, but it’s likely that most of the Green Party voters would have been more inclined to support Clinton than Trump. In any case, the point is that a candidate like Schultz is more likely than not to draw anti-Trump voters away from the Democratic candidate in 2020, and in so doing he is likely to help the President and hurt the Democrats. To the extent the people inclined to support Schultz care about defeating Trump in 2020, this ought to give them some pause.

There are other scenarios that are possible, of course. Somehow, a candidate like Schultz could find a way to win an outright Electoral College majority, but given the number of states that are solidly red or solidly blue in Presidential election years that seems to be rather unlikely to say the very least. The other, perhaps more likely, scenario is that Schultz runs but ends up being essentially a non-factor in the race in that he neither wins any Electoral College votes nor turns out to be a deciding factor in what would otherwise be a two-person race between Trump and whoever the Democrats end up running against him.

All of this, of course, ties back into the arguments that Steven Taylor has made here at OTB several times in the past about how political structures help to define political outcomes. Under the system for electing Presidents as it is set forth in Article II and the 12th Amendment, we have a system that is biased heavily in favor of one of two major political parties. Rather than winning an election outright, there are really only three possibilities for the impact a third-party candidate might have on the outcome of an election. They will either help one candidate more than the other, and in a race involving an incumbent, the odds are that they end up helping the incumbent, toss the election into the House of Representatives, or have no impact at all.  Absent changes in how we elect Presidents, that’s unlikely to change in the near future. This isn’t to say that people shouldn’t vote third-party if they’re so inclined, but if they do they ought to go into the process fully aware of what the consequences of their support might be.

 

FILED UNDER: Law and the Courts, Politics 101, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Gustopher says:

    Let’s just pretend that Howard Schultz is a smart man — he knows this and is doing it anyway.

    He wants his tax cuts, and he doesn’t care about the rest of America.

  2. Paul L. says:

    So the Democrats plan to abolish the Electoral College would eliminate the 2 party lock on the President.

  3. Kylopod says:

    One of the reasons why an electoral deadlock remains unlikely is the winner-take-all method of allocating EVs in most states. The closest Perot came to winning an EV was in Maine’s 2nd district (the same one Trump won in 2016), because Maine is one of two states to allocate its EVs by district. If states allocated EVs proportionally to the candidates’ percentage of the vote, it would make it much easier for third-party candidates to win EVs–and it would also make an electoral deadlock much likelier.

    The last third-party candidate to win EVs, George Wallace, was attempting to cause such a deadlock, and that goal may have been within his reach if he had won more states in the South. (Looking over the map now at 270towin.com, if he’d won Tennessee and the Carolinas, he’d have been 1 EV away from a deadlock. He was within single digits of winning those states, and given that one faithless elector in NC voted for him, I could see it having happened in another state such as Florida.)

    Of course, Wallace was the governor of Alabama who had famously placed himself within the doorway of a school to stop integration, so he had special appeal in that region. Perot’s curse was that his support was so uniform. He was in third place nationally, so he was in third place in almost every state and didn’t come close to winning first place anywhere (except the aforementioned Maine district). His advantage was that he had the kind of wacky charisma (I always thought he should be played in a movie by Joe Pesci) needed to build a cult following. He was certainly not boring. I imagine that if Trump had run a third-party campaign in 2016 he would have won a decent percentage of the vote–albeit nowhere in the universe of what he won as GOP nominee.

    Schultz doesn’t demonstrate any of those traits. He’s got the worst of all worlds. He doesn’t have any special regional connection like a Wallace or Thurmond, but he doesn’t have the wacko-bird eccentricity of a Perot. What he does have is massive delusions of grandeur. That’s what worries me.

  4. Kathy says:

    The only way I see third-party candidate winning, is if their party managed to take down one of the two major parties. And likely this would require a party split, which hasn’t happened in over 150 years (if the Republicans actually split off the Whigs). A realignment is far more likely, and indeed we are at the tail end of one. But that doesn’t produce third parties.

    I don’t suppose the Libertarian Party, for instance, was founded with the idea of capturing a few million votes for president and zero electoral votes. On the other hand, they seem to disappear between general elections.

    The same goes for the Green party, and others one hears about every four years, or every eight. I can’t take them seriously as political forces.

  5. Kylopod says:

    @Kathy: The 1912 election is the closest it’s come to happening since the birth of the GOP. I don’t think a situation like that could happen again, due to the term-limits amendment. You’d have to have a president who left office very popular, and that’s not going to happen to a one-termer who’s constitutionally eligible to run again. (Imagine Jimmy Carter or George H.W. Bush attempting a third-party bid several years after being booted from office.)

  6. CSK says:

    @Kylopod:

    Plus, unlike Trump, he may actually want and intend to win, no matter how delusional that notion may be.

  7. Kylopod says:

    @CSK: I do think Perot was in it to win it. How well he would have done if he hadn’t gone off the deep end and temporarily dropped out of the race midway through the campaign is a very good question.

  8. Mister Bluster says:

    @Paul L.:..Democrats plan to abolish the Electoral College…

    Like the University of Phoenix the Electoral College exists only on the internet.
    It does not have a campus or a football team.

  9. Teve says:

    @Gustopher: back in the day Steve Forbes entered a GOP primary with the sole policy of cutting taxes hundreds of millions of dollars on people in his exact financial situation. So it’s not unprecedented. But it was too naked a scam even for the GOP, at least the GOP of that time.

  10. OzarkHillbilly says:

    Howard Schultz makes “kill the rich” sound like a reasonable proposition.

  11. Just nutha ignint cracker says:

    @Gustopher: Well duh!

    ETA: @ Paul L.: It’s not a Democratic Party plan, per se; it shifts in importance depending on which side believes it is disadvantaged by the status quo. That factor does not make it a bad idea to consider, though. Your side will be looking at it as “an idea whose time has come” someday, too. I won’t be mocking it then either.

  12. Just nutha ignint cracker says:

    @Kylopod: As I recall, exit polling showed some significant number of voters who would have voted for Perot except that “third party candidates can’t win.” It appeared to me at the time that if all of those voters had switched (unlikely to be sure), Perot would have won the majority of votes, but I wouldn’t bother to argue that point because I can’t find that data anymore.

  13. Kylopod says:

    @Just nutha ignint cracker: I definitely think there’s an element of self-fulfilling prophecy in our two-party system. If we managed to make the kinds of reforms that make third-party wins much easier–abolishing the EC and instituting PR in Congress, among other things–I’m not sure it would truly break the two-party duopoly, at least not overnight. Republican vs. Democrat isn’t just something cemented by our electoral system–though it no doubt is–it’s firmly entrenched in the political culture. Despite the much-ballyhooed fact that a plurality of the public are independents, I think most voters’ political identity is shaped within the party system (mostly in what political scientists term “negative partisanship,” or hating the other party), reinforced by the partisan media infrastructure as well as by the culture of demographics: your race, religion, socioeconomic status, and so on. Likewise, prominent third parties like the Greens and Libertarians don’t exist with the expectation that they’ll ever win anything, so they don’t spend any of their time coming up with a serious governing vision–which helps explain why they’re filled with kooks and purity trolls.

    Notice also that most of the big third-party presidential runs center around a single personality, and then the party itself goes on to fade after that person leaves the scene–Perot with the Reform Party, Wallace with American Independent, TR with the Bull Moose, and so on. I wonder if one of these people actually managed to win, it really would have a long-lasting impact on our party system. Possibly things would just go back to normal after the person finished their term (and we have a direct example of that below the presidential level, with Jesse Ventura in Minnesota).

  14. Mister Bluster says:

    Republican Views on the Electoral College
    Many allege that the Republican ideal shift towards the electoral college was greatly impacted by the elections of George W. Bush and Donald Trump. Both of these Republican presidents lost the popular vote but won the elections. It was after these two elections that support for replacing the electoral college with a popular vote fell sharply. Currently, 19% of Republicans and Republican-leaning independents favor basing the winner on the popular vote, down from 49% in October 2004 and 54% in 2011.

  15. Kathy says:

    @Mister Bluster:

    If a Democrat ever wins the EC while losing the popular vote, watch out.

    I recall in 1992, lots of republican voters complained that Clinton hadn’t won a majority of the popular vote, and therefore should not have been elected president.

    It’s true Clinton did not win a majority of the vote, but he did get the most vote of all three candidates.

  16. Kylopod says:

    @Kathy:

    It’s true Clinton did not win a majority of the vote, but he did get the most vote of all three candidates.

    That wasn’t especially uncommon at the time. It had happened several previous times in the 20th century alone.

    In contrast, having the plurality-winner of the popular vote lose the presidency is historically very uncommon. Before 2000, you have to go back to the 19th century for another example. That’s why 2000 came as such a shock. Indeed, I suspect that if you’d taken a poll before that time you’d have found a majority of Americans unaware of the fact that the president isn’t chosen by popular vote.

  17. James Joyner says:

    One tiny caveat to Sam Feist’s description of the process: it would be the House of Representatives of the next (117th) Congress, not the current (116th) Congress, deciding the outcome in the event no candidate got a majority in the Electoral College.

  18. gVOR08 says:

    I started thinking about the cost of a second Trump term v the benefits of blowing up the whole anti-democratic EC/House vote system. But the odds of Schultz winning a single state are too low to be worth further thought. Plus there’s the trap of how to change anything. The thought of a Constitutional Convention in the era of Koch is too frightening to contemplate. If Trump were to lose the popular vote by even more, and be elected anyway, a second time, maybe there’d be a hue and cry for an amendment from Congress. But I can’t see enough of the red states ratifying. So I guess pitchforks and torches down Pennsylvania Ave would be all we could do.

  19. Kathy says:

    Three’s something called the National Popular Vote Interstate Compact. The problem with that is getting enough states to sign on, not to mention the legal challenges which would surely follow. and, by requiring a large number of states to sign on, it’s little different in difficulty than an amendment.

    I wonder if anything could be done without requiring a Constitutional amendment. I just don’t see anything. A further difficulty is the traditionalist nature of US politics, which means any reform would almost certainly keep the EC in some form, just like the Compact cited above does.

  20. Jen says:

    I watched Schultz’s interview with Poppy Harlow on CNN last night, and couldn’t believe what I was hearing. He seems to think that anyone who self-identifies with a party (~25% for R, ~30% D) will vote for their party candidates, and he’ll capture the entire middle ~40% because those people identify as independents.

    The only people I’ve heard with this tenuous a grasp on party identification are people who do not follow (or understand) politics. Yes, party identification is down, for a variety of reasons. But most people who identify as “independent” consistently vote for one party or the other–they are disaffected with their own party but do not want to abandon their political principles.

    Given that, depending on what he chooses to run on as policy positions, he’d either pull some votes away from the D candidate, OR some votes away from Trump. He’s not going to get every independent vote.

  21. James Pearce says:

    I’ve seen so much fear and loathing over this Howard Schultz guy, and it’s a little funny. A full fifth of the Democratic Senate is going to be running in 2020. What have they to fear from some CEO billionaire making a 3rd party run? I mean, the only reason we all don’t Medicare by now is all the racists and sexists, right?

  22. Tyrell says:

    Mr. Schultz did not leave the Democratic party. The party left him.
    People are now attacking and hollering at Howard in a type of mob mentality that seems to have taken over politics, and some of the main “stream” news media. And, of course, misguided people are calling for a boycott of Starbucks. That is common now too. What happened to having a calm, civil discussion? That is what people used to do. When a person decides they want to run for a public office, they should not be treated as some sort of criminal.

    1
    3
  23. Just nutha ignint cracker says:

    “He seems to think that anyone who self-identifies with a party (~25% for R, ~30% D) will vote for their party candidates, and he’ll capture the entire middle ~40% because those people identify as independents.”

    Yo mama, you say?

  24. @Jen: His grasp of politics has been shockingly bad. As has his penchant for calling things he doesn’t like “un-American.”

  25. Mister Bluster says:

    @Tyrell:..People are now attacking and hollering at Howard in a type of mob mentality that seems to have taken over politics,..

    You mean like this…

    Armed Trump Supporters March on Portland, Beating Up Opponents and Calling for Hillary Clinton’s Arrest
    Gibson also has some more mainstream supporters. Earlier this year, Gibson met with former Donald Trump adviser Roger Stone in Oregon. (Stone, like Gibson, is a frequent guest on Alex Jones’ Infowars show.) And the chairman of the local GOP has cheered Gibson on during his rise to notoriety, inviting Gibson’s associates in the Three Percenter militia to serve as security at party events. Stone this year asked Proud Boys to provide security during his visit to an Oregon conference of Republicans, where he also met with Gibson.

  26. An Interested Party says:

    What have they to fear from some CEO billionaire making a 3rd party run?

    Umm, those 12 senators (how is that a “full fifth” of the Democratic Senate?) aren’t the people who have to worry about some political ignoramus making a 3rd party presidential run…

    I mean, the only reason we all don’t Medicare by now is all the racists and sexists, right?

    Thanks for acknowledging the obvious…

  27. James Pearce says:

    @An Interested Party:

    how is that a “full fifth” of the Democratic Senate?

    Do the math. There’s 45 Dem Senators; 47 if you include the 2 independents. If 12* are running….

    It’s more like a full quarter! A 4th of the Dem Senate wants to be president.

    * Is it really 12 now?

  28. Unless I am forgetting someone, there are three Senators who have declared: Warren, Harris, and Gillibrand,

  29. Kylopod says:

    @Steven L. Taylor: We had this conversation a couple of weeks ago. Pearce at the time estimated that 20% (not a quarter) of the Democratic Senate would run. I identified seven Senators thought to be likely to run, which is 15% of the Democratic caucus, and I noted that if two dark horses enter–making it 9 Senators–that brings it to 19%.

    I don’t know where he got the idea that 12 Senators are going to run, and that strikes me as unlikely. In fact there’s a good chance that not all of the 7 I identified will ultimately enter the race.

  30. Here is a PDF file I prepared that includes a table that shows how many Ds and Rs there are in the House for each state.
    https://mappingsupport.com/p2/political/howard_schultz_12th_amendment.pdf

    Rs control 26 states
    Ds control 23 states
    1 state is tied

    I highlighted states that in theory might possibly flip. If Howard runs and gains traction then the 2020 House races in the highlighted states gain extra importance. After all, if as a result of the 2020 election (1) no presidential candidate has 270 electoral votes and (2) the Ds control at least 26 states in the 117th House, then the House vote for president will not happen until the new House is seated early in January 2021.

  31. Kylopod says:

    @Joseph Elfelt: I appreciate the info, but I don’t see it as likely that Schultz will win any EVs, let alone enough to deadlock the electoral college (an outcome that even past third-party candidates who won several states, such as George Wallace and Strom Thurmond, didn’t come close to achieving). Ross Perot couldn’t do it with nearly 20% of the popular vote, and he had a much bigger following than I think Schultz will ever gain.

    A much more plausible scenario for an electoral deadlock would be if the two major-party candidates get 269-269. This could happen, for example, if Trump gets the same wins as in 2016 except for PA, MI, and ME-2. The map would look like this:

    https://www.270towin.com/presidential_map_new/maps/xLV1g.png

    In any case, I think the end result of a deadlock would invariably be a Republican win, because even though Dems control the House, the GOP controls most of the state delegations.

  32. @Kylopod: Indeed. I cannot see any scenario at the moment in which Schultz gets even 1 EV (aside from an elector so voting after the popular vote).

    2020 will not be 1992 and Schultz is no Perot (arguably one of the most successful third party bids for the WH–and as you note, he won no EVs).

    Schultz could take a few votes away from the major parties–I am actually leaning toward the notion that he would take from Trump more than a Dem. Could that influence a close state? Possibly. That would be his only effect on the race.

    Odds as better than he barely gets 1% of the vote.

    (I personally doubt that he runs).

  33. James Pearce says:

    @Kylopod:

    I don’t know where he got the idea that 12 Senators are going to run

    I got it from An Interested Party’s comment.

    @Steven L. Taylor:

    Unless I am forgetting someone, there are three Senators who have declared: Warren, Harris, and Gillibrand,

    Bernie hasn’t yet?

    And the point isn’t “Dem Senators suck;” that’s the bad faith take. The point is that the Democrats have a Senate problem. They have too many legislators who want to be president and too few legislators that want to legislate.

    This has policy implications. It’s why nothing can get passed. It’s why shutdown stunts cannot be blocked until they become unendurable. I would gladly trade “the first __(insert adjective)__ president” for some policy-oriented Dems in Congress who are going to put some effort into 21st century priorities.