How We Might Uber Our Next President
A four-step guide to how a strong third-party performance could upend the election and the presidency
During the past decade, the on-demand economy has emerged as a defining force shaping the future of how Americans work and access services. Uber’s impact on transportation is the most prominent example and other companies are making similar inroads in areas ranging from hospitality to education to food to manufacturing.
Could the Uber model extend to the most powerful job in the world: President of the United States? Less than six months from now, the answer may be yes. We may find ourselves in a Twilight Zone reality where the Commander in Chief of the armed forces, keeper of the nuclear launch codes, and leading Mom jeans model may become the equivalent of an Uber driver operating as temporary, on-demand contract labor at the beck and call of a Republican-controlled Congress.
How might this happen? More easily than many might imagine: Dust off three obscure parts of the Constitution; mix in some plausible, razor-thin voter shifts in seven states that together comprise 17% of the country’s population; and sprinkle on an Electoral College quirk.
Here is a 4-step guide to how the 2016 election might usher in the age of the Uber Presidency.
Step 1: Hillary Clinton, Political Godzilla
Let’s begin with a political fact: Hillary Clinton is starting the presidential election season as a full-bloomed Godzilla candidate on paper. Arguably, no non-incumbent in modern election history has started out with a better hand by way of fundraising capacity and access to party machine gearworks. Taking a snapshot of the most recent polls, Clinton crushes Trump in a landslide with 357 electoral votes to 181 at current course and speed. In addition to the fifteen reliably Democratic states that bring 226 electoral votes, polls have Clinton ahead in most of the major swing states, including Florida, Ohio, and Pennsylvania.
Like Godzilla, however, Clinton faces an important challenge despite her strengths: she doesn’t seem to vibe with people. Across multiple polls, over 50% of Americans view her unfavorably while only 43% view her favorably. Donald Trump has managed to reach even lower depths with almost 60% viewing him unfavorably and 34% viewing him favorably — a seemingly ingrained view that has held steady for almost twelve months despite his victories in the Republican primaries. This disdain for both major party candidates is historically unprecedented and opens the door for third-party candidates to capture a substantial number of disaffected voters.
Step 2: Third Party Wedding Crashers
This year’s election features two sets of intriguing third-party candidates: Gov. Gary Johnson and Bill Weld on the Libertarian ticket and Jill Stein and Ajamu Baraka for the Green Party. Six polls from July 28th to August 3rd have the third party candidates taking almost 12% of the vote with 9% going to Johnson/Weld. On average, the third-party candidates appear to be hurting Clinton more with a 63/37 split compared to Trump.
Third parties have long been a fixture in presidential elections. Ross Perot, a previously unknown billionaire, wasn’t even part of an official third party ticket when he ran as an unaffiliated independent and garnered 19% of votes cast in 1992. He ran a bizarre campaign operation by almost any measure, dropping out of the race in July and then re-entering in October a few weeks before Election Day. He did little to help his cause when he explained his three-month hiatus with a conspiratorial yarn about shadowy Republican operatives forcing his initial departure by threatening to disrupt his daughter’s wedding.
While Perot was individually quirky with an affinity for displaying pie charts on national TV, his message was geared primarily toward the political center during uncertain economic times, prioritizing opposition to NAFTA and balancing the federal budget while largely staying clear of divisive social issues. If Perot provides a lesson, it is that third-party candidates can generate meaningful voter support if they are representing policies that resonate with the political center, especially during times of economic unease.
Like Perot in 1992, the Johnson/Weld ticket sits close to the political middle in 2016. Johnson and Weld are both two-term Republican governors from Democratic-majority states (New Mexico and Massachusetts, respectively). They are moderate to progressive on many major social issues (pro-choice, pro-immigration, advocates of drug crime reform), conservative on the role of government in the economy, and skeptical of military adventurism abroad.
Exit polling from 1992 indicates that, while Perot expanded turnout, 76% of his votes came from people who would otherwise have picked George H.W. Bush or Bill Clinton. In other words, Perot likely took 15% of the total votes that Clinton and Bush would have gotten despite pausing his campaign for three months and generally coming off as eccentric.
How would Perot-scale performance by the third-party candidates affect this year’s election? If we assume that third-party candidates edge up their current 12% to take at least 16.2% of the vote from Clinton-Trump and hurt Clinton by a 63/37 margin, the election is almost a tie. Breaking the election down into a state-by-state model, a strong third-party showing flips seven states where Clinton currently has an edge over to Trump: Arizona, Florida, Iowa, Nevada, New Hampshire, North Carolina, and Ohio. The race would transform from a Clinton landslide to a 270–268 narrow victory for Trump.
Step 3: Win the North
A tight electoral race opens the door for something that hasn’t happened since the 1824 election: Congress picking the next president. As a refresher, let’s dust the cobwebs off of some obscure parts of the Constitution.
Article II, Section 1 covers the mechanics of our indirect process of electing the President: a few hundred people called electors select the President and Vice President by majority rule with Congress certifying and counting their votes; each state gets a number of electors equal to the size of its Congressional delegation (totaling 538 today across all states, including a special provision giving the District of Columbia some electors); each state’s legislature can decide how to appoint its electors.
The 12th Amendment, modified slightly by the 20th Amendment, updates Article II for the oddball case where no one candidate gets a majority of electors. In a hung election, the House of Representatives selects the President from the top three electoral vote-getters and the Senate selects the Vice President from the top two vote-getters. Congress got involved in 1824 when Andrew Jackson won 99 electoral votes, John Quincy Adams 84, William Crawford 41, and Henry Clay 37. The House made Adams President despite Jackson having more electoral votes (Jackson got his revenge at the polls four years later and threw an epic rager in the White House to celebrate his inauguration).
In a 270–268 scenario, an outright third-party victory in even the smallest Trump state would tip the election decision to Congress. While Johnson/Weld might well take several Trump states (e.g., New Hampshire, Utah), the bar is lowest in Maine. With a long-standing moderate and independent streak, the northernmost state in the lower 48 rejected both Clinton and Trump during the party primaries. Maine was also the most Perot-friendly state in 1992 with voters putting him in second place with 30% of votes to Bill Clinton’s 39%. Finally, with Massachusetts and Maine 20 miles apart, Johnson’s VP running mate, Bill Weld, may have residual name recognition from his time as a popular neighboring governor.
As one of the ten least-populous states, with only 1.3 million residents, Maine’s small population makes the state contestable for third-party candidates operating on limited budgets. A unique quirk in Maine’s elector allocation rules lowers the bar even further: a third-party candidate can get an electoral vote by winning in just one district with 664,000 residents.
49 out of 51 states and the District of Columbia allocate electoral votes by a simple winner-take-all rule: the candidate who gets the most votes (even if it’s a plurality) wins all of the state’s electoral votes. Maine and Nebraska follow a different model: the top vote-getter receives two electoral votes and the remaining electoral votes are split between the winners of each congressional district. So, even if Johnson/Weld lose the overall vote in Maine, a win in Maine’s second district means they can still walk away with the one electoral vote they need to deny Trump an electoral majority and send the vote to Congress.
As it turns out, Maine’s second district looks like a particularly attractive prospect for Johnson/Weld. Perot outright won three counties there in 1992 (Picataquis, Somerset, and Waldo), losing the overall district to Bill Clinton by a 38–33 margin. The second district is currently a dead heat with Trump leading Clinton 37–36 as of mid-June (current polls have Clinton winning the state overall to get 3 electoral votes and Trump taking 1 electoral vote with a win in the second district). Bruce Poliquin is the second district’s Congressman, an endangered species of moderate Republican in the Bill Weld mold who is noteworthy for being one of three members of his party to vote against the repeal of Obamacare in 2015.
A Johnson/Weld victory in Maine’s second district would lead to a 269–268–1 outcome that would deny either major candidate an electoral majority. Even if Johnson/Weld couldn’t muster a win in the second district, they could still deadlock the election 269–269 and send it to Congress if they tip the district to Clinton.
A 269–268–1 or 269–269 electoral outcome represents a scenario with relatively few moving parts: a swing between major-party candidates in seven tightly contested states and a breakout performance for a third-party ticket in a single rural congressional district where many factors are in its favor. The point of going through the steps leading to this scenario in gory detail is not to convince anyone that this particular single-shot possibility will necessarily bear out. Instead, the point is to make the case that a hung election is plausible under this year’s circumstances using realistic assumptions. There are multiple additional pathways that would send the election to Congress, including:
- Trump could gain momentum to beat Clinton in multiple swing states (especially Pennsylvania where I have Clinton winning even with a third-party influence) and Johnson/Weld taking multiple states from him. In general, states where Johnson/Weld are most advantaged are Republican ones even though overall they take more of the popular vote from Clinton. A scenario where Trump handles Clinton on his own opens up more paths for Johnson/Weld to deny anyone a majority. By contrast, a scenario where Clinton handles Trump on her own leaves fewer paths because Democrat-leaning states are a harder climb for Johnson/Weld
- Stein’s Green Party candidacy could catch fire with disaffected Sanders progressives who might otherwise vote for Clinton. This would have a similar effect to Trump gaining momentum on his own
- Republican establishment figures could get behind Johnson/Weld as the de facto Republican ticket, increasing the ticket’s likelihood of outright victory in large swing states (e.g., Ohio, Pennsylvania). Johnson/Weld victories in large swing states creates more cushion for a hung election because it would take electoral votes off the table and reduce the number of available pathways for Clinton or Trump to get a majority even if one of them significantly outperforms the other
If you can get your head around a hung election being a plausible outcome in 2016, that opens the door to a chain of events that few might imagine would even be possible.
Step 4: Congress Is As Congress Does
The juiciest parts of the 12th and 20th Amendments have to do with how Congress picks the President and Vice President when no one wins a majority of the electoral college. As mentioned earlier, the House picks from the top three vote-getters for President and the Senate picks from the top two vote-getters.
It’s not hard to imagine House Republicans taking a long look in the mirror and deciding that they can get more done with a former Republican governor than they can with either Clinton or Trump. With the negative favorability ratings and polarization that both Clinton and Trump generate, it’s also not hard to imagine that many voters might find Johnson acceptable as an “anyone-but” compromise if the alternative is their least-favored candidate. The Vice President slot might make for slightly awkward relations at the White House with the Senate installing someone from an opposing ticket as it considers only the top two vote-getters.
If the 12th and 20th Amendments stopped at forcing a choice among the top candidates and we ended up with a President Johnson serving with a Vice President from an opposing ticket, 2016 might rank as a top 5 or 10 footnote-worthy moment in presidential election history. It would rank alongside other quirky elections: the Supreme Court determining the outcome of the 2000 election; the 25th Amendment making Ford the first entirely unelected President in 1974; Congress deciding the 1876 election by picking which electoral votes to count from three states with disputed returns; Congress picking John Quincy Adams over Jackson in 1824; Jefferson and his running mate Burr tying in 1800 through an administrative oversight and sending the vote to a Congress that almost picked Burr over Jefferson out of spite; and John Adams being forced to serve with his political rival Jefferson as his Vice President.
If third-party success pushes the election to a Congress where Republicans retain control over both chambers, however, 2016 may well go far beyond other historical anomalies to become the undisputed G.O.A.T. of insane election outcomes. It all comes down to a massive loophole buried in the Constitution that Republicans may be tempted to take advantage of. Here’s the text from Section 3 of the 20th Amendment (emphasis added):
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, 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 elect 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.
Get it? If the House doesn’t pick someone from among the top three candidates for President, the Senate’s Vice President pick becomes President. If the House and Senate are split between two parties, that forces the House to make a choice or else see the opposing party pick the President by virtue of its control over the Senate. All well and good with kinda-checks and kinda-balances.
Now here’s the loophole, and it’s a whopper: If the same party controls both the House and Senate, it can decide for both chambers to pass on picking anyone from among the top vote-getters. By failing to choose among official candidates, Congress gains the power to choose anyone it wants acting as President as long as the person meets the basic Constitutional requirements for holding office.
In case you missed it, here’s the relevant sentence again: “Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified.” Translation from Constitution-speak: If Congress doesn’t do its job in resolving a hung election, it fully controls the presidency. Good deal.
Using the 20th Amendment loophole, Congress can effectively initiate an Uber-style presidency in a hung election. Legislators can conjure up almost any random person on-demand to fill the role of President. In an extreme interpretation of the 20th Amendment, Congress could even try to give itself the power to make the acting President’s tenure a temporary at-will gig by adding a series of short term limits when “declaring who shall then act as President.” For example, a fairly simple rule would do: “The person who shall act as President is the one who we pick every Monday at 9am. If we don’t pick someone on a Monday at 9am, the person who acted as president on the previous day shall continue to act as president.”
Is any of this probable? I wouldn’t make an even money bet on it; the last part about appointing the acting President on an at-will basis would certainly be subject to Constitutional challenge with many strong arguments against its permissibility. At the same time, we’re talking about a political institution in Congress that has shut down the government multiple times, has not mustered to pass a formal budget since 1997, and whose deep past includes a Representative beating a Senator with a cane on the Senate floor to the point of causing grievous injury that required a three-year convalescence and lifelong debilitation.
Looking at today’s field of candidates, polling data, and past third party performance, the Uber presidency is certainly possible and arguably even a plausible outcome in an election year that has already proven to be anything but predictable and with a set of political actors who are nothing if not human.
* Parviz Parvizi is a entrepreneur and lawyer based in Boston and occasionally writes the Hasty Newsletter.