Why 37 Votes = A Hung Electoral College, a Contingent Election and the 7th Party System
The Robert Kennedy (RFK) campaign is rapidly gaining adherents. He is no longer just pulling voters from both Trump and Biden. There is now a distinct possibility that he may deny both Trump and Biden the 270 Electoral College votes the Constitution requires to win. RFK could drive the US into a hung Electoral College. This would lead to a complex voting procedure in the Senate and the House, which is also difficult to predict till we know which party will control those bodies. Even if Trump or Biden can win 270 Electoral College votes, Kennedy may do so well in the popular vote that a third party becomes a real force in the American political dialogue in a way we’ve not seen before. But, if no one gets the required 270 votes, it might take just 37 Electoral College votes for Kennedy to win the Presidency and bring about the end of the 6th Party System in America. (See: Independent's Day & The 7th Party System, if you don’t know about the 6th Party System).
The best analysis of this possibility to date is by my old friend Donald Luskin at TrendMacro whose nouse on these matters has always been excellent. On February 8th, his team released a report called How Biden and Trump Can Both Lose. Easily. For months, he has said that there is a 50:50 chance of a contingent election, but now he goes much further and says it’s becoming a central scenario.
For those now reeling in disbelief, be reminded that the US has faced a contingent election three times before. Thomas Jefferson won over Aaron Burr in 1800. Andrew Jackson lost to John Quincy Adams in 1824. In 1836 Richard Mentor Johnson became Vice President through a contingent election under Martin Van Buren. We’ve seen it before. Yet nobody gets that this could happen again now. If no one wins 270 Electoral College votes, the voting for the President will fall to the House of Representatives. The House votes on a straight state-by-state basis and can only vote for the top three Electoral College vote winners. So, one of those three can win only if they get 26 states or more on their side (remember that there are 50 states). In a contingent election, The Senate chooses the Vice President. They can only choose from the top two Electoral College vote winners. All 100 members of the Senate get a vote. Obviously, it matters which party is in a majority in each Congressional chamber at the time of the vote. If the parties in control change in the upcoming election, which they may, this adds another layer of uncertainty to this whole process.
This is no longer a two-man race. There is a 3rd man. This is no longer about a traditional race or traditional parties. This is about a possible contingent election. That means that we are much closer to the end of the 6th Party System and the start of the 7th Party System than I suggested we were back in November. At that time, I suggested that RFK might launch his own party. Now he has. Except, he says, it isn’t a party. It’s bigger than that. It’s a movement called “We The People”. The riffing off the first three words of the Constitution has the Democratic National Committee on the offense now. They have filed a complaint with the Federal Election Commission arguing the Political Action Committee called American Values 2024. According to Forbes, the DNC says this PAC is “illegally coordinating with Kennedy Jr.’s campaign, with Bob Lenhard, legal counsel for the DNC, telling NBC and other outlets the campaign is "in the process of accepting a $15 million unlawful in-kind contribution," referring to the $10 million to $15 million that American Values 2024 has promised to spend on ballot access.” Kennedy is also aligning with existing smaller parties, like the Libertarians, and gathering a coalition of independent voters.
If you think this picture looks like chaos, step back and observe the much broader quaquaversal forces at work on politics. Think of it this way. Biden won’t get 270 votes if RFK wins just one single state and Trump flips at least two