How Joe Biden can become President in the 2016 Election. A wild, but hypothetically possible, scenario.

 Does Joe know something we don't?  Well . . .

What?  Joe Biden can win the election?  Surely you jest?  

No, and he doesn't even have to run.

Will this happen?  No.  

But it's theoretically possible.

And in a wild hypothetical exercise, here's how.

Let's start by looking at the 12th Amendment of the Constitution, which controls this topic.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists 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 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.

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.

The 12th Amendment of the Constitution provides that the President must receive the majority of electoral college votes.    Let's look at that again, in relevant part:

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 . . .

So, to win, a candidate needs the majority of the whole number of electors appointed.  There are 535 electoral college votes.  To win you need 270 votes.

It is not inevitable that either party gets 270.  In this past weekends This Week the pundits made their predictions, all coming in with figures for Trump from around 240 up to 269.

But that's in a two person race.  Indeed, this week summed up the race as "100 days, 50 states and two nominees".  But that isn't what we have.  Right now we have a little less than 100 days, 50 states, and at least six candidates.  Of those six candidates at least four of them have fairly serious followings, with one other having a very small serious following.  There's been a lot of talk about the Libertarian Party taking away Republican votes this year, and the Green Party taking Democratic votes.

Now, recently, the Green presumptive nominee has offered Bernie Sanders the Green Party nomination, which of course he declined.  

Let's assume, for purposes of our wild hypothetical, the Greens draft Bernie against his will.  

If they did, he'd protest. But would he take any states. . . . I'm guessing he might.  Heck, even as it is, its not impossible that the Libertarians might pick up one or two.

So, let's say the Greens draft Bernie and nominate him kicking and screaming.  After awhile, well. . . the voice of the people and all . . . 

So, the election comes, and the day after, let's say Sanders has twenty or so electoral votes and neither Trump nor Clinton have 270.   Neither Trump nor Clinton would win, under the Constitutional provisions. Then what?

Well, it would go to the House of Representatives who would pick from the top three candidates.  But there the House would not vote by the number of Congressman, but by state.  I.e., there would be just 50 votes.  Consider again:

 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.

So, in order to win a candidate would need 26 states to go for him or her.  Assuming, a quorum of states could vote.   What's a quorum for this purpose:

a quorum for this purpose shall consist of a member or members from two-thirds of the states

A quorum, for this purpose, would apparently be 34, or maybe 33, states.

There are no Constitutional rules for how a state would pick who it would vote for.  Presumably rules would have to be chosen, as was the case the last time this provision of the Constitution was used, 1825.  Presumably each state's House members would vote in a separate internal ballot to determine which way their state would go.

Now, here's the curious thing.  Right now, 34 states have a majority Republican House makeup.  Sixteen have a majority Democratic makeup.  So if even one GOP state can't make up its mind, there's no quorum.  Of if one went for the Libertarian candidate. Or if even one just didn't want to go for Trump.  

So, what happens if there's no quorum?

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.

Well, Joe Biden becomes President. 

Indeed, in this wild scenario, the Democratic states would be nuts to vote for anyone. They'd be better off angling for no vote at all and defeating the quorum, which they'd only need one GOP state to aid them in, and some of the GOP states aren't very Republican.

Likely?

Surly not.

Possible.

It actually is.

I wonder if Joe has thought of this?