At lunch today, a friend and I started trying to figure out what the worst possible outcome of the election would be, leaving aside snide partisan quips like “A Bush victory” or “A Kerry victory”. Here’s what we came up with.

Our ‘nightmare’ scenario is a combination of several possiblities:

  1. It is possible that Bush could win the popular vote by a fair margin (say 52-48) while still not gaining a majority in the electoral college. This could happen because Bush is beating Kerry like a rented mule in many of the red states while trailing by a slim margin in several battleground states.
  2. There is a plausible scenario in which Bush and Kerry wind up tied at 269 electoral college votes each, in which case the election would be thrown into the House of Representatives.
  3. There is an amendment on the ballot in Colorado which, if it passes, would result in Colorado’s 9 electoral college votes being allocated proportionately instead of winner-take-all. The constitutionality of this amendment is debatable, particularly the question of whether it can modify the allocation of electoral college votes in the same election in which it itself is adopted.
  4. Supreme Court Justice Rehnquist has just undergone surgery for thyroid cancer.

Put all these elements together and what do you get? Bush wins 53% of the popular vote, but winds up in a 269-269 tie with Kerry in the electoral college. But the Colorado amendment passes, and if its terms apply then Kerry picks up 4 of Colorado’s votes, thus winning the election. Republicans file a constitutional challenge against the Colorado initiative, which makes its way to the Supreme Court. With Rehnquist unavailable due to his illness, the Court threatens to deadlock 4-4 on the constitutionality of the Colorado initiative.

In reaction to this, Rehnquist resigns from the court. Bush makes a recess appointment to replace him, thus breaking the logjam. The Court finds the Colorado intitiative unconstitutional by a 5-4 vote. With the electoral college balance now back to 269-269, the election moves into the House.

At that point, I’m pretty confident that no matter what the House wound up deciding, a really massive chunk of the public would never accept it. A Bush win would be viewed as illegitimate due to the perceived packing of the Supreme Court overturning the Colorado initiative. A Kerry win would be viewed as illegitimate due to the margin of victory in the popular vote and the perceived attempt to ‘change the rules’ in Colorado mid-election. And we haven’t even considered the mutual and inevitable accusations of fraud and voter intimidation.

Update: Last night I dug out a copy of the Constitution to double-check on what happens if nobody gets a majority in the Electoral College. I learned something I didn’t know which could make the outcome even more bizarre. It turns out that the House selects the President, but the Senate selects the Vice-President! So in the Evil Scenario above, it would only take one Senator bolting from the GOP to result in a tie for selecting the VP — a tie which would have to be broken by, well, the VP. Two bolting and we’d wind up with Bush-Edwards in the White House.

Also, from my quick reading, it wasn’t entirely clear whether the votes are supposed to be done by the outgoing Congress or the incoming one, or if it depends on when the vote is actually taken. That could make for a whole new level of fun.

4 Responses to “Just How Bad Can It Get?”
  1. levi from queens says:

    Interesting question on which Congress. At the time the constitution was written, each Congress had three sessions. The newly elected Congress did not sit until the old one had finally adjourned. (This made more sense when the President was sworn in on March 4th). So it clearly would have been the old Congress which decided. The Lame-Duck amendment (#20) did away with the third session of Congress. It seems to me that if the current Congress can reach a conclusion, they will. If not, the incoming Congress will have to decide.

  2. Kyle Haight says:

    Of course, if the control of the Congress changed hands in the election, then you could get a situation where the new Congress denied that the Presidential selection by the outgoing Congress was valid. In the absence of clear Constitutional text supporting one side over the other, who would resolve the dispute?

  3. Avenger says:

    If by fun you mean civil war in a worst case scenario, then sure, lots of fun.

  4. Kyle Haight says:

    Avenger: Well, yes. Obviously these kinds of breakdown scenarios, should they happen in real life, would be a major disaster. Resolving any kind of non-standard electoral outcome requires a basic level of trust between the two sides, and in the worst-case scenario that level of trust doesn’t exist. The United States government is based on the consent of the governed; if a significant proportion of the governed withdraw their consent then a civil war is exactly what we’ll have on our hands.

    I really hope that doesn’t come to pass. The tone in my post was admittedly somewhat flippant, in a “what can you do but laugh” sort of way. But if this election does melt down into riots and revolution in the streets I definitely won’t be laughing, and it won’t be fun in any way.

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