Is Bill Kristol nuts? Could an independent “real conservative” – like constitutional lawyer and war veteran David French – really run at this late date? Or, for that matter, could Bernie Sanders do so if he is “denied” the Democratic nomination, as some of the Sander-istas are threatening?
The conventional wisdom is “no!” Given the gauntlet of restrictions on ballot access for independent candidates, these “go-it-alone” scenarios seem implausible.
Still, the outsider scenario deserves a closer look. Consider these three factors.
▪ National mood. In the history of U.S. presidential elections, the presence of “third” or outside options has had a surprising effect: Rather than splitting the opposition, outside options can galvanize voters. In 1980, Illinois Congressman John Anderson, a Republican running as an Independent, pulled 6 percent, enough to affect the outcome of several states. Ditto 1912 (Teddy Roosevelt), 1992 (Ross Perot) and, of course, 2000 (Ralph Nader, who got more than 5 percent in 10 states). Independence seems to breed independents.
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▪ The rupture between voters and “major” parties. Nationally, 40 percent of voters are “independent,” rejecting a traditional affiliation. If there were another choice, some voters might be tempted to protest by voting for someone else.
▪ The calendar this year favors an independent run. Most states have ballot access deadlines in mid-August, with the earliest being in May (Texas) and June (Illinois, Indiana, North Carolina and New Mexico). The latest deadlines are North Dakota and Rhode Island, both in September.
Usually that pattern would block a post-convention independent run. In 2012, for example, the Democratic convention was held Sept. 3-6; the Republican event was Aug. 27-30. The point is that by the time the conventions are over, the mid-August deadlines are past.
But this year things are very different. The conventions are six weeks earlier: The Republicans meet July 18-21 in Cleveland; the Democrats convene July 25-28 in Philadelphia.
So, let’s play this out. Twenty-five states have filing deadlines on or after Aug. 10. The total requirement for ballot access in those states is about 400,000 registered voters combined, well within the boundaries of possibility if you have $2 million ready to go.
If we count the Electoral College votes at stake in the 25 “late filing” states, we get 246. Winning requires 270, a majority of the 538 total. So 2016 can’t be “Independents’ Day”: The late arrival couldn’t win, even if he or she swept all the states where ballot access is possible.
But then the goal might not be to win. All that has to happen is that the outside candidate focuses on, and then wins, a few states, maybe as few as two or three. That might be possible: Hillary Clinton (45 percent) and Donald Trump (56 percent) have “negatives” that are unprecedented for modern major party candidates. The “Anybody But __!” folks on both sides might revolt. It is not hard to imagine that an outsider might get 20 or 30 Electoral College votes, taking one state from each major candidate.
And then? Well, if the race is close, and the “third” candidate manages to take a couple of states, it’s possible nobody wins a majority. The 12th Amendment would then send the election to the House of Representatives, where voting is one-state, one-vote, and the possible candidates would be restricted to the top three Electoral College vote-getters.
Up until now, we have been focused on a brokered convention. But if an outsider catches fire, there might be a brokered election. Remember: The Republicans control 32 House delegations outright. If David French wins just two or three states, he could still wind up as president.
Michael C. Munger is a professor of political science, economics and public policy at Duke University.