While theoretically possible for the reasons that I’ll explain in a moment, this is not going to happen, but not just for the obvious reason that either Clinton or Trump will most likely win a majority of the electoral college on Election Day.
As Morris noted, if neither Trump nor Clinton win enough states to claim a majority of the Electoral College on November 8th, McMullin hypothetically has a path to the presidency. As a quick primer, if no candidate gets a majority of the electoral college votes, the top three electoral college vote-getters compete in the House of Representatives where — somewhat stunningly — each state delegation (rather than each representative) gets one vote. Due to the likely composition of the House following the election, this all but ensures that if the House Republican caucus can agree on a candidate, that person will be elected.
As it turns out, I was just discussing exactly this scenario with the students in my Introduction to Comparative Politics class at New York University last week. And here’s what I think will happen should this unlikely combination of events take place.
The key to Morris’s argument is an assumption that House Republicans will prefer McMullin to Trump. Fair enough; I agree. But let’s see what happens when we take account of the fact that other electoral college voters should also be aware of this fact.
I’m going to add an additional assumption: for neither Trump nor Clinton to have a majority of votes in the electoral college, Trump will need to have won Ohio. Reasonable people can disagree, but I think it is fairly unlikely that if Clinton wins Ohio she will fail to get an electoral college majority. In other words, if Clinton takes Ohio, she wins the election.
Ohio has more electoral votes than Utah: 18 vs. 6. If we continue to assume that Republicans in the House will prefer McMullin to Trump, then looking down the game tree, Ohio’s slate of electors will know that if they vote for Trump, McMullin will become president.
But if instead, Ohio’s electors all agree to vote for Ohio Gov. John Kasich, the top three vote-getters in the electoral college will be Clinton, Trump and Kasich. McMullin’s name will not even be forwarded to House. And if we assume that McMullin would have beaten Trump — as Morris’s scenario assumes — then it seems very likely that so, too, would Kasich.
So the question to ask is: Would an Ohio slate of Republican electors prefer Kasich or McMullan? I’m guessing it would be Kasich.
Now, if I’m a Republican elector from Texas — with 38 electoral votes — reading this post, I’m thinking “why let Ohio decide this one”? And the reality is, if Texas’s Republican electors can coordinate on a candidate (Ted Cruz? Rick Perry?), then that candidate can beat Kasich.
At the extreme, every state delegation could end up coordinating on its own choice, in which case California, Texas, and New York or Florida (the four states with the most electoral votes) could end up picking the three candidates for president!
Of course, all of these scenarios depend on the question of the “faithless elector” — electors who would vote for someone other than the candidate that they were selected to represent by their state. In the history of the United States, there have been a sum total of 157 faithless electors. In the past 100 years, there has not been an election with more than a single faithless elector. Is it likely we’ll witness the rise of the faithless electors in 2016? I doubt it. But is it any more likely than having multiple state delegations in the House of Representatives vote for a presidential candidate that only won the state of Utah? Maybe not, but it has been a strange year so far.
The bottom line is that if we’re going to start looking at unlikely but legal scenarios, the Constitution allows for an awful lot of them. And as a result, Evan McMullin’s path to the presidency may be even more limited than Morris suggested.