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Suppose there was an American third party candidate, who won a quarter of the popular vote, and a single large state or a handful of smaller ones: specifically with enough electoral votes so that neither the Republican nor Democratic candidate could get to "270" in an otherwise close Presidential election. Then the election would be decided by Congressional delegations in the House of Representatives.

Could some of these House delegations vote for the independent candidate if they agreed to do so? Or are the individual members "bound" to the candidate of their own party?

Suppose either the Democratic or Republican candidate wanted to support the third party candidate to deny the other opponent the election. Could this candidate ask "his" state delegations to vote for the third party candidate to help him form the needed majority?

Note: My question is whether the above would be allowed under the Constitution or other relevant "rules of the game," NOT whether it would be "politically feasible."

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    The vote is of the delegation, not individual members...
    – littleadv
    Apr 17 at 21:57
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    @littleadv: If there were eleven members of a state delegation, they would vote between themselves as to whom their one state would support, right?
    – Tom Au
    Apr 17 at 22:27
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    @TomAu Yes. That is how it works.
    – ohwilleke
    Apr 17 at 22:31

2 Answers 2

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Could some of these House delegations vote for the independent candidate if they agreed to do so?

Yes.

Or are the individual members "bound" to the candidate of their own party?

No. Individual members would usually vote this way and it is commonly assumed that they would, but it isn't required by law. The U.S. Constitution doesn't even recognize the existence of political parties.

Also, since state delegations cast votes as a whole, a majority of the delegation has to support a candidate to cast a vote at all in this contingent House election. If the state delegation can't get a majority of its members to agree on a single candidate then the state forfeits its vote in the contingent House election. And, it is a one state-one vote system in the contingent House election.

The process is set forth in the 12th Amendment to the United States Constitution which states in the pertinent part:

if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Effectively, the contingent election is a two step process. First, there are fifty intrastate votes over how to cast the state's contingent election vote, and then each of those fifty state decisions are tallied up. To elect a President, at least 34 states need to cast their votes, and a majority of the states voting have to support the same candidate. Otherwise, they get to try again until they elect someone or the VP elected by the Senate takes over.

In theory, a candidate with support only from the eighteen smallest state delegations could be elected President.

Pundits usually assume that delegations with a majority of one of the major political parties will cast that state's vote in favor of the their political party's candidate, and that tied state delegation won't cast votes. But there is room for wheeling and dealing that could produce a different result, especially in a case where there is a third-party spoiler candidate.

Suppose either the Democratic or Republican candidate wanted to support the third party candidate to deny the other opponent the election. Could this candidate ask "his" state delegations to vote for the third party candidate to help him form the needed majority?

Yes. Members of Congress aren't bound to comply with that request, but any candidate (or anyone else for that matter) has every right to ask.

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    This is entirely subjective, but if a candidate were to withdraw and endorse someone else, I would be very surprised if their party then turned around and tried to elect them anyway. There's nobody else you can vote for - only the top three vote-getters are eligible candidates, and it's not as if you're going to vote for the other party's candidate.
    – Kevin
    Apr 18 at 0:56
  • "But there is room for wheeling and dealing that could produce a different result, especially in a case where there is a third-party spoiler candidate." Are there any historical examples of that? Apr 21 at 20:30
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    @NoDataDumpNoContribution There was some negotiation in the 1800, 1824, and 1876 elections. The 1912 election didn't involve much negotiation but illustrated how a strong third-party candidate could flip the outcome as a spoiler candidate. en.wikipedia.org/wiki/Contested_elections_in_American_history
    – ohwilleke
    Apr 22 at 1:38
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The chances of a third-party presidential candidate in a plurality result are tiny. This is because Congress is currently composed of Republicans and Democrats with very few exceptions. Their loyalty is to their respective party.

Barring mass defections of Republican and Democrat members, the third party would require their own representation in Congress. If that existed, then the third part of the question could at least be discussed.

The most expected outcome, would be that a 3-way plurality scenario would help whichever of the two major parties controls more states. This expectation dissuades third parties from forming in the first place. In my opinion it is an enormous weakness of the US political system.

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  • I'm a noob, could you explain "The most expected outcome, would be that a 3-way plurality scenario would help whichever of the two major parties controls more states" further, and how this dissuades the formation of third parties? Apr 18 at 3:58
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    @DavidRaveh, the winner is the candidate with the most votes, not a majority. Adding more parties tends to weaken the side with more parties rather than any other outcome. If you add a second large right wing party, the right wing vote is split and the left wing candidate often wins and vice versa. Hence under FPTP you tend to get two party systems as its to the opposition's benefit if more are added on your side of the spectrum.
    – Separatrix
    Apr 18 at 10:56
  • @David Raveh - If the presidential election does not yield a 50%+ majority in the electoral college, the election is decided by the House, with the reps from each state getting 1 vote / state. Today, probably Republican. A party with e.g. 25% vote share that is geographically dispersed would have few House seats and would get nothing in this method of counting. In addition, whichever major party that is ideologically closer to the third party, would often fight harder against the new party than their bigger rival. Unlike a Parliamentary system, where minor parties contribute to coalitions
    – Pete W
    Apr 18 at 12:54

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