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The VICE Guide to the 2016 Election

What if We All Just Didn't Vote?

Three words: President John Kerry.

by Mike Pearl
Oct 6 2016, 4:00am

Photo via Flickr user Tim Evanson

Former presidential candidate and low-energy American Jeb Bush had an interesting thought for us all to chew on in the lead-up to election day. During an appearance at Harvard last week, he was asked if he was voting for Libertarian candidate Gary Johnson, since he's already publicly ruled out voting for Hillary Clinton or Donald Trump. He dodged the question, but when asked what would happen if normal voters followed his lead and avoided the major-party candidates, he replied, "If everybody didn't vote, that would be a pretty powerful political statement, wouldn't it?"

Whoa, man.

Sure, Jeb has been known to smoke weed, but don't be too dismissive. Voter abstention—a.k.a. "not voting and being really smug about it"—is more than just a stoner-thought experiment. It's a proud tradition in America, and it's part of that "free-speech" thing Americans value so much as well as that "not really giving a shit" thing Americans also love. One political-science paper from 2006 found that "alienation and indifference each motivated significant amounts of voter abstention in the 1980–1988 US presidential elections," which affirms every Gen X slacker stereotype in the book.

But no one voting, at all, period? That's a lot different than a bunch of longhairs deciding they'd rather listen to Hüsker Dü cassettes than punch a ballot for Reagan or Mondale. What would happen if, say, a brain parasite that prevents people from voting in any way infects everyone in America from now until inauguration day 2017? And while we're imagining things, let's also go back in time and give that parasite to the Americans who already voted by mail, so now they all haven't voted either. Jeb Bush's fantasy has come to life.

What happens now, and who becomes president?

Look, You Have to Have a President

OK, so technically *pushes up glasses on bridge of nose* the United States is a constitutional republic, not a democracy. When you vote, you're actually voting for electors, who in turn vote for a president. "Since a president isn't directly elected," Sarah Rosier, editor of federal politics at Ballotpedia, told me, "electors would have to be chosen a different way."

"The Constitution says somebody has to be president," said Richard E. Berg-Andersson, creator of TheGreenPapers.com, one of the first election-tracking websites. "You can't go around without a president of the United States."

It Could Literally Come Down to a Coin Flip

So how would states pick electors in the absence of votes? Article II, Section 1 of the Constitution says that electors are appointed "in such manner as the Legislature thereof may direct"—in other words, they have some latitude in picking these guys. If there were zero votes in a presidential election, the race would essentially be a tie, and according to Berg-Andersson, state-election authorities "would have to turn to the tie-breaking methods that are either statutorily established, or established by custom."

After reviewing the constitutions of several states, though, Berg-Andersson couldn't find a prescribed method in the event that no one votes, meaning states could resort to "flipping a coin, putting names in a hat, or probably drawing lots" to pick electors.

But an electoral coin flip—used during primary season to pick delegates—might not work, because "you would think they would have to include the major third parties," Berg-Andersson said. Drawing ping-pong balls out of a hat—a method Wyoming used in 1994 to pick a state legislator after a tie vote—would be more suitable. That means Jill Stein and Gary Johnson could have a real shot at winning some electoral votes.

Then, electors would be chosen, and the electoral college could proceed as usual, right?

But What About That Deadlocked Electoral College?

OK, but what if the electors, infected with the same anti-voting brain parasite, refused to cast their votes for president? In many states, electors are not legally bound to vote for any candidate, and "faithless electors" have occasionally cast write-in ballots. It follows that they could abstain, just as regular voters did.

As anyone who has watched Veep knows, if no candidate gets a majority in the Electoral College—which none of them would if no electors voted—the presidential pick would go to the House of Representatives, with each state delegation getting one vote to be doled out to any of the three presidential candidates who got the most electoral votes.

But wait! There wouldn't be a top three if no electoral votes were cast. In that case, according to Berg-Andersson, the legislature would have to get creative. "It may be down to Congress, coming up with some acceptable solution in order to get a president named." In the end, he said, "Congress is the referee."

And at this point, it's also likely that the courts would be getting involved. People would be deeply unhappy with the democratic shitshow playing out on the news, and there would be lawsuits galore. It wouldn't be long before a court case that Berg-Andersson called "Bush v. Gore on steroids" would be making its way to the Supreme Court.

Bottom Line: John Kerry Would Become President

Supreme Court Justice Elena Kagan swears in John Kerry as Secretary of State in 2013. Photo via Wikimedia Commons

Donald Palmer is an attorney who was Virginia's top election official from 2011 to 2014. He told me that Berg-Andersson is right about Congress choosing the president independently of the American people. But if they don't pick anyone, the presidential line of succession kicks in, just as it would if the president were assassinated.

"By doing nothing, or by not affirmatively choosing the next president by the new Congress, apparently the new speaker [of the House] becomes president," Palmer told me.

But remember: Our fictional parasite premise says no one can vote: not the general population, not the Electoral College, not Congress, and not the Supreme Court. "No one's voting for a new House of Representatives, so there's no speaker," Berg-Andersson said. There's no president pro tempore of the Senate either, so that means the presidency falls to the secretary of state—and that's John Kerry, who would remain at his post even as the terms of Congress and the president expire.

"The members of the cabinet don't leave office unless they resign or someone fires them," Berg-Andersson said. "There've been many times when the outgoing cabinet officer has remained in office after a new presidential term has begun, even when the new president is of a different party than the preceding president," he added.

"So it would be John Kerry," Berg-Andersson said. "John Kerry could become president if no one voted,"

So there you have it, Jeb. That's what would happen. Now go out there and make sure you're registered to vote.

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