For There to Be a Viable Third Party, the Constitution Would Have to be Amended

Under current conditions more parties and candidates is not tenable

Joe Biden presiding over the 2016 Electoral Vote count | CSPAN

I confess I used to be a rabid “third party” advocate. I would get into discussions and debates with anyone I could about how unjust it was that the two main parties dominated the system. I would drone on about how the two parties were just slightly differing degrees of the same thing. I was saying many of the same things you hear from Third-party proponents today.

As I got older and wiser, I started to understand the world differently and come to more pragmatic conclusions. I still do think that more parties would benefit our system of governance. The two main parties experiencing threatening political forces from all sides can keep them more honest and motivated to actually create policies that help people. It could reduce corruption and inertia in bureaucratic governance and create momentum for faster change to keep up with the times.

The system we have now completely favors only two parties. The Founders didn’t intend on this; in fact, they expounded on the dangers of parties and worked to avoid their influence and keep it from inherent in the system. However, this wasn’t effective, as parties almost immediately because the main vehicle for political change, and vehemently attacking the motives and intentions of the other tribe became the de facto order the of the day. (If you think we’re divisive and polarized today, read some accounts from the early days of the republic).

One thing the Founders did not seem to be particularly fond of is pluralities. They liked majorities and favored the winner of at least half of the votes to carry the day in most cases, with occasional, more sobering, circumstances calling for supermajorities. This seems reasonable enough on its face and has mostly been useful for the functioning of our system of government throughout our history.

But a recent perfect storm of demographics and geo-political forces has put this majority'-centric approach in the forefront and exposed, if not a weakness, at least some valid criticisms, the main one being the Electoral College system. And I’m not even talking about how it favors the minority — that’s an article for another day. I’m referring to how it effectively blocks out alternative parties in today’s society.

The Constitution calls for the requirement of the majority of all the electors of the Electoral College to elect the president. This means that the gravity of the country’s politics will go towards an ideology, or political platform, that is likely to achieve a majority of votes. This gravitational pull, by necessity, will eventually constitute two main forces vying for the majority. Any more ideological entities would dilute out the political energy and result in a vote without a majority. Therefore, the parties absorb these strong ideological movements.

As a microcosmic example of this, take the recent votes for the Speaker of the House in early 2023, which resulted in an historically high number of votes taken to elect the Speaker. The current House rules call for a Speaker to be chosen by a majority of a quorum of House members. Therefore, the two main ideologies, in the form of the Republican and Democrat parties, hunkered down into their corners and voted. Democrats were in one corner and Republicans in the other. If Republicans weren’t hopelessly fractured into their intraparty ideologies, the Speaker would have been chosen quickly. But because a third ideology took root and had staying power, it became a nightmarishly long and tedious process.

If the rule was that the Speaker was the winner of the most votes total, period, and not the majority, then a plurality of votes could have decided the winner, and the Speaker would easily have been picked in one vote. In fact, this allowance of a plurality to be the victor ensures that a victor will occur on one vote, assuming no literal ties.

It is certainly worthy of some debate as to what is the better system, a majority or plurality victor, but that’s not the point of this article. The point is that by requiring a majority of electors to choose the president, and laying out the subsequent conditions that would prevail if there is no majority winner, the Constitution makes any more than two major parties practically and politically unviable in today’s society.

If there is no majority winner of the Electoral College, then the House of Representatives votes on the president, again by majority. But it’s not the individual members’ whose votes are counted, it’s the States’, each of which constitute one vote, determined by the candidate that gets the most votes by the Representatives of each state. The majority, or 26 out of 50 states’ votes, wins. Incidentally, the Vice President would be chosen by the Senate, from the top two candidates. What happens in the case of a tie in both chambers? No idea, but it seems as though the current Vice President would assume the Presidency, based on the plain language of the Constitution. How about if the states’ Reps tie within their state votes for president? I’ll let the lawyers sort these questions out.

So unless we are okay with the House voting in blocs of states’ Representatives for the President, any third party that wins a respectable number of electors would create a politically precarious situation. The Constitution was written during a time when much trust was placed into the hands of the representatives in congress. It was essential for real-time decision-making to occur this way, as transportation and information was much slower and inefficient. It made sense that the House and Senate, as the voices of their constituents, would settle these matters. Even an Elector was more of a representative or an independent-thinking entity than the robotic party acolyte that they act as today. In today’s world, a President chosen this way would be considered illegitimate automatically by a huge portion of the population and faith in the system would likely collapse, even though this is the process as laid out directly in our Constitution.

Vehement third-party proponents have to ask themselves this question: Am I okay with the President being chosen by the House, per blocs of states? Because that’s what a third party with actual power will do. And this will simply result in the furtherance of the two-party duopoly that third party proponents despise. The most powerful two parties of the states would consolidate and one of them would prevail in all of the states. If there is a true highly popular grass-roots movement of a new party, and it takes hold of a significant number of states, and thus they win a good portion of the states’ votes, then the House presidential vote could be competitive. But even then, since it calls for a majority of the states’ votes, we’d be in the same situation as with the Electors. In the case of no majority being achieved, the Vice-President would be the acting President, and this would be if the Senate vote did not result in a tie.

As we can see from these examples, it would be very messy if a third party became significantly powerful enough to win some states, as it would create a near-constitutional crisis, if not a full-blown one. It might seem exciting on the surface to have such a powerful alternative option, and perhaps a third party will rise to the level of replacing one of the current ones as viable, perhaps supplanting the most dysfunctional one in our midst at this current time (wink, wink).

But unless this extreme scenario happens, the only way to ensure viable alternative parties can exist would be to modify the rules of the Electoral College and allow for a plurality of electors to decide the presidency, as opposed to an outright majority. This would cleanly elect a president without having to bring in superfluous archaic rituals involving Congress. Even if a third party didn’t win, we would be assured that the voters themselves had a more direct voice in choosing the president, not the representatives in Washington D.C. A viable third party could exist and have the opportunity to grow without causing the nation to descend into the darkness that a constitutional crisis would bring.

Modifying the Electoral College in this way would require an amendment to the Constitution, which would be almost impossible in today’s America. On the other hand, this rule change would benefit all people, regardless of ideology. It would not favor Republicans or Democrats. It would ensure avoidance of a crisis without being an immediate direct threat to the current duopoly. A third party is unlikely to replace one of the main two parties right now, they would just act as a spoiler. But this spoiler effect has the potential to evoke a major existential crisis. It has disproportionate power over the future of the country.

In addition to the above arguments related to alternative parties, how about promoting this amendment proposal as a check on potential schemes to capitalize on any further ambiguities in federal and state election laws? One of the goals of the “fake elector” coup attempt in 2021 was to keep the expected winner, Joe Biden, from getting to 270 electoral votes. Even if Trump didn’t gain any more electoral votes, just suppressing Biden’s total to below 270 ensured he would not win the majority of electors, and hence trigger the next steps the Constitution described to elect the President, as explained above. If we amended the Electoral College rules to be that the candidate with the most votes wins, as opposed to the majority of votes, this manipulation wouldn’t be possible. A plurality of electoral votes could win, and thus the suppression of electoral votes for one candidate would not be near as damaging as it otherwise would be.

Politicians could expound on the foresight they have by avoiding this potential crisis. It could be done without relying on an alternative party argument, which is less likely to gain traction within the two-party duopoly we are currently in. This crisis avoidance can and should be the motivation for political will to get this amendment done.

Most of us don’t want to be subject to the whims of Congress on such weighty matters as the election of the president. They have extremely low approval ratings and polls that measure trust have been brutal to all governmental institutions. In addition, information is now instant, and people are as informed as ever, and have strong opinions on, the issues of today. This amendment of the Electoral College rules would be one way to ensure that it is the people that address their timely and current grievances.

In the meantime, alternative parties are simply spoilers with a pipe dream, potentially sparking an explosion of controversy and crisis.