I drive around listening to NPR, like the good little brainwashed semi-millennial/semi-Gen-X college grad that I am. On a recent trip, I was listening to the Diane Rehm show. For those unfamiliar, Diane Rehm is the godmother of talk radio, particularly in the Washington, D.C. area. She’s been the host of her show—a roundtable panel discussion on the radio, which she moderates with an iron fist—for decades, and it is syndicated nationally. Diane herself, however, suffers from the cruelest of fates: old age. In addition, her voice has been cracking for as long as I can remember and now she’s out on leave for health or personal reasons more than she’s in, it seems. But the show must go on, and new hosts come in to fill in those shoes.
On this particular show, the host was John Donovan, host of Intelligence Squared, another NPR program. This time, though, it is a nowherpre near as good as the original British rip-off, much like The Office. John was joined by a panel that I expected to be more moderate, or even, *gasp*, conservative than the normal guest panels. One failing of the Diane Rehm show is that she plays to her NPR audience with her own bias and with the bias in her selected guests. There is usually a token conservative for the purpose of varied discussion, but it’s often one-dimensional. But today, the guests were from the National Review, a strong conservative bastion—though their Never-Trump position has put them at odds with the party’s nominee for president; The Atlantic, a moderate magazine that favors genuine and high-quality journalism; and an editor from Yahoo! If that last seems like an odd addition, it was, but I guess it had to be someone, and any old yahoo would do. The inclusion of this yahoo, however, would prove to be very problematic.
The topic of the early part of the show, which you can listen to in its entirety here, was the current state of the presidential election. With the National Review’s stance on Mr. Trump, and his general disdain (deserved, let’s be honest) from the media writ large, it was a bit of a pile-on of the Trump campaign’s failures. Later the discussion turned to the still vacant Supreme Court Justice seat previously held by Antonin Scalia, which has been kept in protective custody by the Senate Republicans. These two lines of discussion intersected in a way that made me utterly lose faith in journalism, perhaps once and for all.
You can watch the failure happen “live” here . Our yahoo starts talking about coverage of the 2000 presidential election and how the role the Supreme Court played there keeps journalists like him awake at night pondering a 4-4 tie in the Supreme Court right now and what that might mean in the, extremely unlikely, event of an Electoral College tie. And the rest of the panel, even the staid and generally bright Molly Ball (from The Atlantic), rather than correcting him, pile on.
For the record:
- The Supreme Court did not decide the 2000 presidential election. In the case Bush v. Gore the Supreme Court of the United States held that the Supreme Court of Florida had violated the law by continuing to extend deadlines for recounts. Bush v. Gore imposed a deadline for certification of results. It did not change any of the results, or hold one set of the results to be more true than another conflicting set of results.
- The Supreme Court was involved in this case only because it had jurisdiction. It was a ruling under the Constitution’s Equal Protection clause for the votes to be counted properly as cast in a timely fashion from the original election; that is the right of the voter in Florida to have his or her vote counted was being inappropriately discounted by the Supreme Court of Florida.
- The Florida vote must count because either Bush, or Gore, won Florida, and the winner of the state’s electors would naturally win the Electoral College. There was no possibility of a tie in the Electoral College without an extraordinary number of faithless electors.
In the event that the Electoral College convenes and votes a tie result, or in fact of any result where there is no clear majority—a plurality is insufficient, unlike in the popular vote of many contests—the question of “who will be the next President of the United States” is already answered. The answer is in Article II of the Constitution.
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representatives 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.
For the “Too Long; Didn’t Read old-style English” version, the answer is this: if no candidate obtains a majority of the electoral college votes for president, that is if neither Hilary Clinton nor Donald Trump is able to reach a 270 elector majority, then the election devolves to the House of Representatives, where the members of the House vote—as a unit by State. That is we would have 50 votes for president at that time. One vote from each of the states, as chosen collectively by their representatives in the House.
The fact that the yahoo didn’t know this is sad. He’s a professional who has been covering presidential elections for a minimum of 16 years. This is a relatively simple fact that he surely should have known. Even if it were something he was unfamiliar with previously (e.g. in 2000), this particular presidential election cycle has generated significant discussion about many potential edge cases and Constitutional tests, so there has been plenty of literature in the past 6 months for him to have read and reviewed. Even worse, the fact that no one else corrected him, either from the panel, the host or from the administrative staff on site for the show, is appalling.
The election of a new president in no way involves the Supreme Court. If it were brought before the Supreme Court, their decision could not be clearer. They are specifically instructed by Article II of the Constitution as to how to resolve this supposed “death of the Constitution” crisis.
The Supreme Court vacancy is a serious issue, and it may impact the fringes of the presidential election, and not just as a point for campaigning upon. It is conceivable that another case like Bush v. Gore makes it to an evenly split Supreme Court and the court is unable to form a majority opinion. That would be extremely ugly to watch, I’m sure. But the Court has no voice in selecting the president—ever. And even a divided court would simply, by default, affirm the lower court’s decision, which is fully binding in their jurisdiction. It shows that our forefathers had more foresight and insight into the likely outcome of elections than this pathetic rabble of journalists.
