8

What if, for whatever odd reason (disregarding the extreme unlikeliness of this ever happening), a two-term President of the United States was elected to a third term by popular write-in vote? What would happen?

The laws don't seem to cover this so well (most likely because the probability of it happening approaches zero), but even if the law clearly rejected all votes for the third term, would the government be inclined to enforce it, the will of the people being that strongly opposed to the other offered choices?

Jeremy Holovacs
  • 982
  • 6
  • 14

1 Answers1

11

Most likely, the following will happen:

  1. Each state's electoral voting rules will kick in. The write-in who is not eligible as a candidate will be treated on the ballots as each state's rules indicate - most likely, simply have those ballots discarded as invalid.

    There may be some state variations, e.g. when state has special rules that invalid name on a ballot counts as "NONE" candidate, AND when something special needs to happen if "NONE" wins over valid candidates.

    Either way, what will NOT happen, will be certifying that write-in person as a winner of any of the state's election.

    Each state's rules are different, here's an example from Georgia: "However, because Darwin was not an officially registered write in candidate, the Georgia Secretary of State did not tabulate those votes".

  2. As such, no electors will be pledged to such a write-in "3rd term" ineligible candidate, since the candidate will NOT, legally, have won in any of the states, all ballots with their name being invalid/empty.

  3. When the electors vote, one of two things will happen - either they will vote for someone else, or for the already-served-2-terms-write-in person (becoming mass faithless electors).

    Remember that the electors MAY choose to vote for whoever they decide, despite who they are pledged to (See Faithless elector)

  4. If the latter happens, their choice will be challenged in SCOTUS and likely declared invalid.

  5. As such, the 12th Amendment to the US Constitution will kick in:

    ...The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and 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.

  6. As an extra, if even after all the above barriers, an ineligible president is elected, Section 3 of the XX Amendment kicks in:

    .. if the President elect shall have failed to qualify [between Election Day and Inauguration Day], then the Vice President elect shall act as President until a President shall have qualified;

    ... and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”

Community
  • 1
user4012
  • 92,336
  • 19
  • 225
  • 386
  • I've always thought the wording of the 22nd Amendment to be a bit strange. "No person shall be elected to the office of the President more than twice" seems to imply a restriction on voters, with no associated penalty for violating this completely unenforceable law. It seems strange that the amendment does not read "No president shall serve more than two terms as president"... – Jeremy Holovacs Jan 10 '13 at 20:17
  • So are the votes invalid, or the results? Or just the candidate? – Jeremy Holovacs Jan 10 '13 at 20:18
  • that's a good point. With our electoral college the population technically isn't voting for president. Is, therefore, the injunction implied by the 22nd Amendment only applicable to the college? And what would happen if they violated the amendment? – Jeremy Holovacs Jan 10 '13 at 20:21
  • @JeremyHolovacs - see points # 4, 5 and 6 of the answer – user4012 Jan 10 '13 at 20:32
  • This is good, but I don't think it's bulletproof (again, I'm just imagining "how can this be broken"...). For example, when the law butted against the will of the people: ff the populous voted so strongly against the rule of law, the law would have a very good chance of getting changed in a hurry. Still, your knowledge is impressive and your answer well defined. Thanks for participating in my thought experiment! – Jeremy Holovacs Jan 11 '13 at 02:44
  • 1
    @JeremyHolovacs - Changing US Constitution is designed to be not easy or fast :) – user4012 Jan 11 '13 at 11:09
  • @JeremyHolovacs This isn't a restriction on voters, it's a restriction on qualification. The voters are free to vote for someone who's served two terms. The electors are free to vote for such a person. It's just that them doing so will not result in that person becoming president. And it's not "No president shall serve more than two terms as president" because apparently the people who wrote it wanted to allow a two-term president to take the office through a means other than election. – Acccumulation Oct 21 '20 at 01:45
  • "Remember that the electors MAY choose to vote for whoever they decide, despite who they are pledged to." - I seem to recall reading that this was made into a criminal action (which, BTW, removes/punishes one of the few useful functions of the USA's electoral college). – End Anti-Semitic Hate Nov 17 '20 at 00:31