President Trump frequently suggests that election chaos could propel his favorite foil to the White House.
“If you don’t have [the election settled] by the end of the year, crazy [House Speaker] Nancy Pelosi (D-CA) would become president,” augured Trump.
Not quite.
A lot of things must first spill off the rails for Pelosi to head to 1600 Pennsylvania Avenue.
But, election and congressional officials are starting to worry about what could unfold this fall and winter if they struggle to determine whether President Trump or Joe Biden prevails in battleground states.
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The Constitution makes Congress the ultimate arbiter to decide which candidate wins each state. Congress must approve certificates of election from all 50 states. But with a polarized electorate, a close presidential race, a pandemic and voting by mail, it’s wise to consider contingencies. And, one of those contingencies includes the speaker of the House matriculating to acting president of the United States.
What’s the law?
You may have thought Nov. 3 is the most important date on the election calendar. But a more crucial date is Dec. 14, dictated by an obscure, Byzantine 1887 law: The Electoral Count Act.
“It is kind of a nightmare of convoluted verbiage,” said Ohio State constitutional law professor Edward Foley. “I’ve studied that piece of text for years now. I wouldn’t be honest to say that I completely understand it. It’s just impenetrable.”
Congress passed the legislation after the disputed 1876 presidential election between President Rutherford B. Hayes and Samuel Tilden. Electoral votes were far from certain in Florida, South Carolina, Louisiana and Oregon. There was a sprint to settle the electoral college tally before Inauguration Day, 1877. Congress created an “electoral commission” to resolve the issues. In those days, the president assumed office on March 4.
The Electoral Count Act dictates that states choose electors no more than 41 days after the election. This is partly why the Supreme Court rushed to complete Bush v. Gore on Dec. 12, 2000. The decision halted the count of ballots in Florida, handing the presidency to George W. Bush.
The 1887 law establishes a “safe harbor” date so states conclude vote counts and establish electors early. But what happens if there are problems with the mail? The cryptic nature of the statute could give some states the green light to continue to counting – or cease counting.
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“Already this year we’ve had an unprecedented amount of litigation filed contesting the rules set up before the election. We’ve never seen this many lawsuits filed,” said election expert Hans von Spakovsky of the Heritage Foundation. “I think it makes folks a little worried and little bit leery about what might happen after the election.”
What happens if the election is not resolved?
So what happens if a state sends inconsistent slates of electoral votes to Congress? The new 117th Congress must hammer all of that out in January 2021.
“It’s kind of a nightmare,” said Foley, considering potential hypotheticals. “Pennsylvania, Wisconsin sending competing submissions of electoral votes, each claiming to be the real ones from the state?”
But can Congress sort this out?
Lawmakers certify the electoral results in a joint session of Congress. Democrats control the House right now. Republicans control the Senate. It’s possible Democrats could control the Senate come Jan. 3, 2021. But Vice President Pence would co-preside over the session in his capacity as president of the Senate. Pence’s term doesn’t expire until Jan. 20. And, the 12th Amendment to the Constitution mandates that “the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall be counted.”
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“I don’t know what your sixth grade grammar teacher was like, but mine said, ‘Never use the passive voice,’” said Foley. “If you read the 12th Amendment, it uses the passive voice at the critical moment. It says the ‘the votes shall be counted.’ These are the electoral college votes coming from the states. And it doesn’t really specify who it talks about.”
The 12th Amendment also says “the person having the greatest number of votes for President shall be President.” But Congress must agree to all of this. And remember, Pence is the one running the show at this stage.
Do not underestimate the role of the vice president at this stage.
Hawaii wasn’t a determinative state in the 1960 presidential election between then-Sen. John F. Kennedy and then-Vice President Richard Nixon. Kennedy was going to win the White House, regardless of Hawaii. Initial results from Hawaii showed that Nixon captured the Aloha State. But a recount shifted the win to Kennedy. Hawaii sent two slates of electoral votes to Washington: one for Nixon and one for Kennedy, both signed by the governor. By the book, Hawaii’s electoral votes should have gone to Nixon. But when the joint session of Congress convened in January 1961, Congress handed Hawaii’s then three electoral votes to Kennedy. Nixon, in his role as the president of Senate, presided.
“Maybe it was a gesture of magnanimity,” said Foley of Nixon. “It goes in the history books that Kennedy won Hawaii.”
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But what would have happened had Nixon intervened, potentially, as the GOP presidential nominee who lost to Kennedy?
We’ll never know.
The Constitution requires Congress convene at noon ET on Jan. 3. The House’s first order of business is to elect a speaker. This is important. Forecasters doubt Democrats will lose the House. Secondly, if Democrats retain the House, members likely reelect Pelosi as speaker.
The Joint Session of Congress to certify the electoral college results comes a few days later.
After the 2000 Florida election dispute, a cavalcade of Congressional Black Caucus members paraded through the well of the House chamber to contest the outcome. Vice President Al Gore, then President of the Senate, and like Nixon, the vanquished Democratic nominee, presided.
“Mr. Vice President, I rise to object to the fraudulent 24 Florida electoral votes,” declared Rep. Maxine Waters, D-Calif.
“Is the objection in writing and signed by a member of the House and a senator?” inquired Gore.
Congressional rules require a House member and senator simultaneously challenge a state’s electoral slate. But Waters lacked a Senate sponsor.
“The objection is writing!” snapped Waters. “And I don’t care!”
Gore stood firm, despite having the most to benefit from Waters’ entreaty.
“The chair will advise that the rules do care,” Gore intoned, triggering applause throughout the House chamber.
Questions arose in January 2005 about Ohio’s slate of electoral votes. In that instance, the late Rep. Stephanie Tubbs Jones, D-Ohio, and former Sen. Barbara Boxer, D-Calif., teamed up to challenge Ohio’s electoral votes. The House and Senate then met separately to consider Ohio’s slate. But after a short debate, Congress decided that President George W. Bush was victorious in Ohio.
To take the presidency, 270 electoral votes are required, but what happens if a candidate falls short because a state’s electoral votes are in dispute? Or, if there’s a tie? That’s where the House and Senate must establish which candidate actually won a given state. But it’s unclear how fast that happens.
“There’s no one higher than Congress in making this decision,” said von Spakovsky. “There’s no set time limit in the Constitution or elsewhere.”
Now we enter murky Constitutional waters.
What happens if Congress hits an impasse when certifying the electoral college? First, there’s no game clock dictating that Congress has exhausted all options. But if Congress determines there’s a stalemate, the 12th Amendment directs the House to elect the president.
This is called a “contingent election.” The House has chosen two presidents via a contingent elections: Thomas Jefferson in 1801 and John Quincy Adams in 1825.
Each state casts one ballot as a House delegation during a contingent election, The House only considers the top three electoral college vote-getters in a contingent election. Likely President Trump, Biden and, maybe, Kanye West? West, or anybody else, could conceivably score an electoral vote or two. There have been 165 “faithless electors” in U.S. history. These are persons who vote for someone besides the candidates for whom they are pledged.
Faithless electors in 2016 directed electoral votes to former Secretary of State Colin Powell, former Ohio GOP Gov. John Kasich, former Texas Rep. Ron Paul, Vermont Sen. Bernie Sanders and Faith Spotted Eagle.
So, one vote per state in a contingent election.
Republicans currently control 26 state delegations. Democrats control 22. Two states are essentially tied. So even though Democrats are expected to hold the House next year, Republicans could conceivably re-elect President Trump if they vote as a bloc, based on state delegation control. The GOP holds more state delegations than Democrats.
For instance, California has 53 House seats. Democrats hold 45 of those seats. But California only counts as a solitary vote in a contingent election. By contrast, South Dakota has but one House seat. But, all states are equal in a contingent election. So, it’s possible that South Dakota or other small states would offset California’s presumptive delegation vote for Biden.
That said, we won’t know the state delegation breakdowns until after the election.
Pennsylvania’s delegation is now deadlocked at nine Democrats and nine Republicans. The election could tip Pennsylvania’s House delegation in one direction or the other. The same with Michigan. Alaska is a red state with only one House seat: Rep. Don Young. However, some political observers believe Young could face an upset this fall.
This is why the breakdown of state delegations could tilt in the Democrats favor, hinging on the outcome of a few key House races.
The House wing of the Capitol wasn’t complete when House members met for a the contingent election of 1801 between Jefferson, Aaron Burr and sitting President John Adams, the top three electoral vote-getters. So, House members huddled in what is now the office of Senate Majority Leader Mitch McConnell, R-Ky., on the Senate side of the Capitol to choose the third American president.
Contingent election haggling consumed six days. Members finally broke the logjam on the 36th ballot, propelling Jefferson to the presidency.
So, what about that “President Pelosi” business?
Time and speed are key. How fast states can count popular votes in November? Can states meet the Dec. 14 deadline to decide which slate of electors to send to Capitol Hill? How quickly can the House and Senate resolve any potential electoral college controversies in January? And, finally, if there is a contingent election, how swiftly can the House elect a president?
That’s why the 36-ballot, six-day marathon in McConnell’s office to elect Thomas Jefferson in 1801 is important.
What happens if the House hasn’t picked a president by noon ET on Jan. 20? That’s the Constitutionally mandated day and time to inaugurate a president. This is where the 20th Amendment and the Presidential Succession Act kicks in.
If the House remains stymied at noon on Jan. 20, there is neither a president nor a vice president. The terms of President Trump and Vice President Pence expire. But there is a speaker of the House, next in line to the presidency.
This is where Pelosi, by statute, becomes “acting president.” Not president. But “acting president.” Whatever that means.
At this stage, we would embark on the shakiest Constitutional realm in American history. For Pelosi to become acting president, she must resign from Congress and the speakership.
How long does Pelosi serve as acting president? The 12th Amendment says the acting president holds this position until a president or a vice president (keep in mind, the vice president is ahead of the speaker in the line of succession) “shall have qualified.”
“Qualifying” means the House finally pierces its impasse and duly elected a president, in a contingent election, as prescribed by the 12th Amendment.
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“We’ve never had an acting president,” said Foley. “That would be new and disconcerting.”
Foley argues these circumstances could create the “two claims scenario.” That’s where there’s where two people say they are rightfully president on Jan. 20.
“This does count as the ultimate Constitutional crisis,” said Foley. “Our president, now on Jan. 20, needs the nuclear codes. The so-called nuclear football. And the Pentagon needs to know who’s commander in chief starting right at noon on Jan. 20.”
In a pre-nuclear world, the U.S. came close to “two claims” with Hayes and Tilden in 1877. A backroom Congressional deal ultimately awarded the presidency to Hayes, even staving off a Senate filibuster (!). Congress determined Hayes won the electoral college 185-184. Tilden captured the popular vote by three points.
Detractors called the new president “Rutherfraud” B. Hayes.
To be clear, these scenarios are far-fetched. But not impossible. And, they raise a bigger question: Would Americans accept any of these outcomes in today’s toxified political climate?
