Last time I wrote about how the complexity of the presidential voting process in the US is an important defense against cyber-terrorism, and specifically the risk of a foreign power impacting or invalidating such an election. While security by obscurity is not usually a best practice, it has been successfully used in the past. If you make something complex enough, it becomes very difficult to break.
With each state or sometimes county determining the voting process using multiple vendors’ products, and almost all of it not connected to the Internet, it will be very difficult for a coordinated attack against an American presidential election. But the more than fifty different results of the votes across the country are not the final result.
The Electoral College provides another level of defense. While the ballot may indicate a specific candidate’s name, in a presidential election you are voting not for a candidate but for an elector who may promise to vote for that candidate when they “meet” in mid-December. (Today they don’t actually physically get together, but they vote on the Monday after the second Wednesday in December.) Maine and Nebraska apportion the electors based on the popular vote in the state; the other states are “winner-take-all.”
To win, a candidate must get a majority of the Electoral College votes cast, not the largest number of votes cast. Currently, that means that a candidate must have 270 votes to win. The president and vice president are voted on separately in the Electoral College. In case there is no candidate with a majority, the House of Representatives selects the president and the Senate selects the vice president.
The intent of the Electoral College was that the electors would discuss the various candidates and decide on a candidate, hopefully representing the views of the people who voted for the electors. Today, of course, the electors are expected to vote for the candidate they represented on the ballot. Twenty-four states have laws to punish an elector who does not vote for the candidate they represent, but there are no federal laws covering that situation. In 1952, the Supreme Court ruled that such state laws were constitutional and that each elector is a functionary of the state, not the federal government. In other words, Congress may not pass a law restricting what an elector can do.
In case of the death, serious illness, or withdrawal of a candidate who had a majority of the electors before the Electoral College meets, the electors could choose another candidate, probably of the same party.
If no candidate emerges from the Electoral College meeting with a majority, the House of Representatives goes into an immediate session. For this “election,” each state has one vote, and a candidate must receive 26 of the state votes. A minimum of 34 states must be represented in this vote, and only the top three candidates can be considered. The session continues until the house elects a president. The House has chosen the president in 1801 (Thomas Jefferson) and 1825 (John Quincy Adams).
Similarly, the Senate goes into session and chooses between the top two vote getters for vice president. Each Senator gets one vote, and at least 67 Senators must be present. A candidate must get at least 51 votes to win, and the sitting Vice President does not get a vote. The senate chose the vice president in 1837 (Richard Johnson, VP for Martin van Buren).
It is therefore possible to end up with a president from one party and the vice president from another party, especially if different parties control the House and Senate.
The last word:
The constitutional process for the election means that no third party candidate is likely to become president. If the third party candidate does not get a majority of the Electoral College votes, but gets enough to prevent any other candidate from getting a majority, the election goes to the House. The existing members in their lame duck session are not likely to choose someone who isn’t a member of one of the two major parties.
However, this year there is one realistically possible, although unlikely, scenario where a third party candidate wins. And it is not Gary Johnson; it is unlikely that Johnson can get any electoral votes even if he gets more than 10% of the popular vote. But Evan McMullin could. McMullin is a 40-year old ex-CIA overseas operator with Middle East experience, plus experience as an advisor to the House Committee on Foreign Affairs, was the chief policy director of the House Republican Conference and holds standard Republican Party views on most issues. He is a Mormon, is running for President as an independent in Utah, and is polling just 4 percentage points below Trump in this historically solid Republican state. If Mitt Romney, another Mormon, endorses McMullin, it could push him over the top. If McMullin wins in Utah, he gets six Electoral College votes, possibly enough to prevent Hilary Clinton from getting 270 Electoral College votes. He is also on the ballot in ten other states, but unlikely to win any of them. If so, the election goes to the House. The Republican Party controls 33 of the 50 state caucasus, so Clinton will not win. But Trump has burned enough bridges that he will likely get less than the 26 required state caucus votes. The House keeps voting, and must pick from the top three Electoral College vote getters: Clinton, Trump, or McMullin. At some point, the Republican leadership will realize that having someone with Republican views as President is better than having Trump as President.
The Senate gets to choose from the top two vice president candidates, Pence and Kaine. With 54 Republican Senators, Pence will most likely become the Vice President.
Keep your sense of humor.