University of Toronto visiting law professor and economist Neil H. Buchanan discusses a constitutional interpretation regarding the requirements for winning the U.S. presidency through the Electoral College, specifically addressing scenarios where some state electors are not appointed. Following up on an argument he has made with Professors Michael Dorf and Laurence Tribe, Professor Buchanan argues that, contrary to popular belief (the “House-decides error”), under the Twelfth Amendment, a candidate does not need 270 electoral votes to win the presidency but only a majority of actually appointed electors. Professor Buchanan points out this means that successfully blocking some state electors, as Donald Trump likely will try to do, would not automatically force the decision to the House of Representatives unless there is an actual tie or a third-party candidate prevents either major candidate from achieving a majority of appointed electors.

UF Levin College of Law professor and economist Neil H. Buchanan argues that Democrats should expressly reject (rather than implicitly accept) Republicans’ erroneous interpretation of the Twelfth Amendment, on the off chance it matters in the next coup attempt. Professor Buchanan explains why the Twelfth Amendment’s fallback provision applies only when the Electoral College vote is a tie.