Could an Independent Presidential Candidate Throw the Election to the House of Representatives?

could an independent presidential candidate win the White HouseBy: Lang Wiseman

Let’s talk potential Independent Presidential Candidate, Electoral College, and throwing the election into the House of Representatives.

The short answer?  Even assuming the election gets thrown into the House, only persons who actually receive a vote in the Electoral College would be eligible for consideration by the House.

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An Independent Candidate?

Many voters and commentators dislike both Clinton and Trump, and are actively seeking an independent candidate or candidates.  For example, last week a leading member of the #NeverTrump movement (Bill Kristol) suggested that David French, a good friend of mine from law school, would be his choice to run as an independent candidate. David is a great guy – smart, principled, patriotic, and down to earth.  And while you wouldn’t necessarily know it from looking at him or reading his work, he loves basketball and actually had a pretty good jumpshot back in law school.  Ultimately, though, David decided not to run.

The path to victory for an independent candidate would be extremely narrow, and shrinking every day, if not already closed as a practical matter.  The various windows for submitting petitions to qualify to appear on state ballots are closing rapidly, leading most of the Anti-Clinton/Trump forces to freely acknowledge that an independent presidential candidate would have little chance to win an election outright.

So what, then, could possibly be the goal?  At least one stated aim is to try to prevent either candidate from securing a majority of Electoral College votes, thus throwing the election into the House of Representatives where a “white knight” candidate could be selected for President.

But is it realistic to think Clinton and Trump could both be prevented from getting a majority of votes in the Electoral College? 

There are 538 total electoral votes, and 270 constitutes a majority.  While it is theoretically possible to have a 269-269 tie – indeed, there are 32 different tie scenarios if you assume 11 battleground states – it is highly unlikely.  Realistically, then, an independent presidential candidate would need to win at least one state in order to prevent both Clinton and Trump from getting to a 270 vote majority in the Electoral College.  However, that is more difficult than you might think.  In 1992, for example, Ross Perot garnered 19% of the vote nationally, but didn’t secure a single Electoral College vote because he failed to actually win a state.  Thus, without major funding or campaign infrastructure, an  independent candidate would likely need to focus almost exclusively on a small handful of states, and then hope for the best in the House of Representatives.

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But let’s assume that happens.  What’s next in the House?

The Twelfth Amendment to the United States Constitution spells out the process, and it actually works quite a bit differently than many voters and commentators apparently believe it does.  This has occurred only twice in history – the election of Thomas Jefferson in 1800 and Andrew Jackson in 1824.

First, the House doesn’t vote in a normal fashion where every representative gets to cast his/her separate vote.  The voting takes place by state, with each state getting one vote.  So a state with a majority of Democrat representatives would presumably vote one way, whereas a state with a majority of Republican representatives would presumably vote another way.  This possibly dilutes a Party’s voting strength.  Assume, for example, 3 states that each have 20 representatives.  States 1 and 2 each have 11 Democrats vs. 9 Republicans, compared to State 3 which has 20 Republicans and 0 Democrats.  If you totaled all those votes separately, then the vote of the Republican representatives would win easily: 38-22.  However, in state-by-state voting, the Democrats would lead 2-1.

Second, and perhaps more importantly, the Twelfth Amendment specifically prohibits a true “white knight” outsider scenario, because the House can only vote for a candidate who finishes in the top 3 in the Electoral College votes.  The pertinent part of the Twelfth Amendment states as follows:

“If no person have a majority [in the Electoral College], then from the persons having the highest numbers not exceeding three on the list of those voted for president, the House of Representatives shall choose immediately, by ballot, the president.”

Thus, a “white knight” candidate must have received at least 1 electoral vote in order to be eligible for consideration by the House.  That presumably means no Paul Ryan, no Bernie Sanders, no Mitt Romney, nor any other outsider who failed to participate in the general election process and win at least one state (or portion thereof, since 2 states — Nebraska and Maine — are technically not winner-take-all when it comes to their 3 electoral votes each).

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The Faithless Elector — the Last Possible Hail Mary?

The Electoral College technically meets and votes in December following the November election.  Based on the Twelfth Amendment, the only other way to trigger a “white knight” scenario would be for one or more of the electors to disregard the popular vote in his/her particular state and become what is referred to as a “Faithless elector” by casting his/her ballot for an outsider.   Twenty-nine states have laws or political party restrictions that technically require an Elector to conform his/her vote to the popular vote in the state; however, no one has ever actually been prosecuted for becoming a Faithless Elector.  Twenty-one states have no laws at all to require Electors to vote for a pledged candidate.

Barring a situation where an independent candidate actually won an electoral vote, the Anti-Clinton/Trump forces would be hoping for an election night that produced a tie in the Electoral College vote.  They would then hope to peel off one or more Faithless electors to cast votes for a “white knight” candidate in December, thus making him/her eligible for a miracle in the House of Representatives.

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About Lang Wiseman: Lang is the former Chairman of the Shelby County Republican Party and attended the 2012 Republican National Convention.

Lang has substantial experience in the areas of business and commercial litigation; bank litigation and workouts; advising small and closely held businesses; insurance coverage disputes; personal injury; professional, medical and legal malpractice; wrongful death; construction litigation and lien disputes; election law; and government relations/public policy. Lang is also a Tennessee Supreme Court Rule 31 Listed Civil Mediator.

Prior to founding Wiseman Bray PLLC, Lang served as Counsel to the United  States  Senate Governmental Affairs Committee. He previously served as Law Clerk to Judge Harry Wellford of the Sixth Circuit Court of Appeals.  Lang graduated with honors from the Harvard Law School after attending the University of Tennessee on a basketball scholarship, where he finished as the 24th leading scorer in UT history (1,156 points). He also graduated with a perfect 4.0 GPA and was the Top Graduate in the College of Business.

Top 8 Ways to Save Money on Attorney Fees

attorney fees, attorney's fees, legal fees

Let’s talk about attorney fees. When confronted with a legal claim or issue, some people simply want to “turn it over to the lawyer and be done with it.” Others prefer a more hands-on approach, and they prefer to work closely with legal counsel.  Some clients want to resolve a matter as quickly and cost-efficiently as possible, while others desire vindication and want nothing short of a judicial ruling or jury verdict. However, there is one thing that all clients probably agree on.  The lower the attorney fees, the better. 

How do you keep legal fees in check?

Make sure your goals and legal strategy are clear. Lawyers work for clients, and attorney fees are based on the amount of work the lawyer performs for the client.  Clear communication and responsiveness from both the lawyer and the client is critical.  Above all, you must make sure you communicate clear goals, and then to listen and understand what actions your lawyer is suggesting.

What can I do to save money on attorney fees?

There are also a few things you can do to reduce attorney fees, legal costs, and expenses:

(1)  Come prepared.  Each time you meet with your lawyer, anticipate questions and come prepared with information. Bring a timeline, notes, a list of witnesses and contact information, and relevant documents.  Don’t make your lawyer beg for the information he or she will need in order to best represent you.

(2)  Obtain, review and organize your documents.  The overwhelming majority of cases can be boiled down to a few key documents. You don’t want to pay your lawyer to obtain documents you could get yourself. Nor do you want to pay a lawyer to “find a needle in a haystack” or to review unorganized or unnecessary documents searching for one relevant piece of information.

(3)  Promptly do what your lawyer asks you to do.  Respond quickly to information and discovery requests from your attorney.  Failure to do so drives up costs immeasurably.  It can lead to unnecessary communications between opposing lawyers, and between clients and lawyers, and often leads to unnecessary motions being filed by opposing counsel.

(4)  Stay on top of your case. Keep copies of all papers, letters, and pleadings.  Take notes when you talk to your attorney.  Keep yourself informed about your case.  You’d be shocked at how often clients call and/or ask for meetings to re-review things they should already know, or to get copies of papers they already have.

(5)  Be an “information gatherer.”  This one is especially true for companies and small businesses. You know your business, employees, and contacts better than your lawyer. Utilize your knowledge and relationships. You can often obtain information and documents much more easily and cost efficiently than your lawyer can.

(6)  Utilize your lawyer’s assistant.  Many of your questions and phone calls can be directed to your lawyer’s assistant, most of which is not recorded as billable time.  For example, questions about scheduling, getting copies of documents, or coordinating meetings and events can easily be handled by a legal assistant much more cheaply than talking to the lawyer every time.

(7)  Understand the difference between legal advice and counseling.  It is obviously critical that you communicate effectively with your lawyer, but keep communications to the point. Oftentimes clients complain or vent about the opposing party, the unfairness of the situation and/or the legal process, or the tactics of the other lawyer.  It’s perfectly okay if you want to pay your attorney to be a sympathetic ear for you, but understand that you pay for your attorney’s time, and that you can very likely get a sympathetic ear elsewhere for free.

(8)  Compromise. Litigation is expensive. Realize that “wins” come in varying shapes and sizes, and that negotiating from a position of strength borne out of effective and thorough preparation can lead to the best long-term outcome.  Indeed, a lengthy lawsuit may not be the best long-term strategy even though you think might have a slam dunk case at trial two years from now.  Winning the battle isn’t worth losing the war.  Smart and tactical compromise can be a virtue, particularly when taking into account both the direct and indirect costs of litigation.

Wiseman Bray has offices in Memphis and Nashville, Tennessee.  Call us today at 901-372-5003.

 

Wiseman Bray PLLC

(901) 372-5003

8001 Centerview Parkway, Suite 103

Memphis, Tennessee 38018

Small Firm. Better Focus. Big Results.

 

 

Lawsuit Deadlines: How long do I have to file a lawsuit in Tennessee?

lawsuit deadlines, personal injury lawyer memphis

Don’t let lawsuit deadlines kill your case before it even starts.

In Tennessee, there are lawsuit deadlines called “statutes of limitations,” so it is important to speak to a lawyer as soon as possible if you believe you may need to file a lawsuit.  If you wait too late, you may lose your ability to seek a remedy or recovery in court.

Why are there statutes of limitation or lawsuit deadlines?

Statutes of limitation serve a number of purposes.  They promote stability in personal and business relationships; they prevent undue delay in filing lawsuits; they help to avoid uncertainty in pursuing and defending old claims; and they help to ensure that evidence is preserved and not lost due to the lapse of time, fading memories, or death of witnesses or parties.

What time limit applies to my case?

It depends on what kind of case you have. Even our courts sometimes struggle with which statute of limitation applies. Generally, a court looks to the “gravamen” of the complaint to determine which statute of limitation applies. Think of the “gravamen” as the “real purpose” or the “main point” of a lawsuit.

The Tennessee Supreme Court, in Benz-Elliott v. Barrett Enterprises  said that when determining the gravamen of a complaint in order to decide which statute of limitation applies, “a court must first consider the legal basis of the claim and then consider the type of injuries for which damages are sought. This analysis is necessarily fact-intensive and requires a careful examination of the allegations of the complaint as to each claim for the types of injuries asserted and damages sought.”

You may have multiple legal theories and claims available to you in your case, but those claims could have different statutes of limitation that will affect your ability to recover.  Because this analysis can be difficult, and it is to your advantage to include as many viable claims for recovery as possible, you should consult an attorney as soon as possible to discuss your case.

Statutes of Limitation in Tennessee for Common Claims

Below are statutes of limitation for common types of claims. There are others, so make sure and consult with an attorney to make sure you understand what time limit applies to your case.

  • Personal injury or wrongful death – 1 year
  • Property damage – 3 years
  • Conversion – 3 years
  • Breach of Contract – 6 years
  • Fraud/Misrepresentation – 3 years
  • Legal or medical malpractice – 1 year
  • Consumer Protection Act claims – 1 year
  • Sale of Goods Contract Claims – 4 years
  • Slander (spoken defamation) – 6 months
  • Libel (written defamation) – 1 year

Exceptions

There are certain exception to the statutes of limitation in Tennessee, but you should never assume an exception will apply to your case. For example, if a person took active steps to keep you from discovering an injury or claim (i.e., fraudulent concealment), then you may have additional time to file suit.

Courts will not allow you extra time to file suit simply because you did not know the applicable statute of limitation, or because you suffered an injury but didn’t find out the full facts or extent of your damage until later in time. Consult with an attorney as soon as you think you have a claim.

Don’t Lose Your Ability to Recover. Call us today.

Statutes of limitations and lawsuit deadlines can kill your case before it even starts. If you think you may have a legal claim against someone, please call us today at 901-372-5003 or email us here. Don’t wait too late and lose your ability to file suit or recover damages. Let the attorneys of Wiseman Bray PLLC help you today.

Local Goverment Alert: TN Supreme Court acknowledges expansive rights of governing boards to sue & be sued

local governmentTwo recent opinions give real insight into the Tennessee Supreme Court’s thinking about the ability of the components of local government to sue each other.

In the first case, the Court confirmed Metro Nashville’s ability to sue its own Board of Zoning Appeals.  In the second case, the Court confirmed the Coffee County School Board’s right to sue two cities over funding issues.

These opinions are especially timely considering the battle brewing in Memphis about whether or not a County Commission can retain its own counsel, separate and apart from the county attorney.

State of TN holding $725M in unclaimed property – click to see if any belongs to you

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Ever wonder what happens to money or property that gets “lost in the shuffle” so to speak?

 

  • an old utility or lease deposit you forgot to follow up on before you moved
  • the last interest payment due in an old savings account you closed
  • a final paycheck at an old job
  • an old safety deposit box your grandmother never told anyone about

 

This is referred to as “unclaimed property,” and by law the holder of the property (i.e. the bank, the landlord, utility, company, etc.) must turn it over to the State along with information about the name and last known address of the owner. They CANNOT keep the property; however, they are not required to track down the owner, either. They can simply turn it over to the State and be done with it.

 

Literally MILLIONS of dollars in unclaimed funds are turned over to the State of Tennessee each year.  Over $40 million was turned in just last year alone.

 

But here’s the good news — the State maintains a website where you can do a simple name search and then claim your property at no cost. Click HERE to perform a search (https://www.claimittn.gov/). You can search for yourself, your parents, your kids, your friends, etc., and then your (or they) can submit a claim form with identifying information as needed and the State will turn the property over to you.

 

As noted above, it is QUITE common for people to forget about small deposits here and there. I once learned about an old utility deposit from back when I was in college and got my refund! It wasn’t much, but it was free money!

 

Use the Comment section below and share any success stories you have finding old/lost property or funds.

 

[TIP: Be sure to also search in other states where you may have lived, transacted business, or maintained accounts. Just type in Google the words “unclaimed property” and the state you want to search.]

 

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