WHAT HAPPENS IF THERE’S NO CLEAR WINNER?
There has been a lot of loose talk from both presidential candidates about rigged or stolen elections of late, and many predict a lengthy legal battle over the presidency.
President Trump warned this week that the outcome could be in dispute for “months and months” or “for years.”
But let’s not get ourselves all knotted up in the claims of our hyper hyperbolic president or his rhetorically sloppy challenger, Joe Biden. Instead, let’s run through the realities of an inconclusive presidential election.
First, let’s remember that it’s Congress, not the courts, that certify the results of a presidential election. Each state chooses its electors and those electors’ votes are transmitted by the state elections boss – usually a secretary of state – to the Senate.
On Jan. 6 a joint session of the next Congress will meet to ratify those findings and declare the candidate that has won a majority of the vote – 270 votes or more – the president.
What the president is suggesting is that there would not be results from all the states by then or, what he and Biden have both suggested, is that the results may be rigged or disputed. And that’s where things could get very interesting.
Courts certainly do have their place in this, but that happens long before Congress acts. State elections officials have to certify their electors before the Monday after the second Wednesday in December, which is Dec. 14 this year. All of the legal jockeying that takes place will have to occur between Election Day and then.
Those who recall the drama around the 2000 election will remember that what was in legal dispute was the power of Florida’s secretary of state to certify the results despite demands from Al Gore’s campaign that recounts continue. The court deferred to state authorities and Florida certified its electors.
Given how long counting has taken in some state primaries this year it’s not unreasonable to think that we could see legal battles rage until the last minute, but one way or the other, by Dec. 14, they’re obliged to convene their electors and transmit the results by certified mail.
But what if some states don’t finish in time or what if secretaries of state certify electors with claims widely in dispute? The Constitution has an answer.
If the disputed or incomplete results don’t prevent a candidate from reaching 270 votes then it’s no big deal. Congress can ignore what’s missing and still pick a president.
But if the number of missing or disputed electors is large enough or the election close enough that the absence prevents either candidate from getting to 270, the House gets to choose. Just as would be the case in a 269-269 tie, the House would select one of the candidates who has won electoral votes.
We have some precedent here. In 1877, the results from three states were in dispute in a race close enough to call the final result in question, so Congress created a bipartisan panel to review the results. The House certified the panel’s findings and awarded the presidency to Rutherford Hayes despite his evident initial defeat. (It went along with some horse trading in which Republicans agreed to end military Reconstruction.)
But however Congress gets there, on Jan. 6 the members will either certify the results or the House will get to work making its choice. Here, the House acts differently than usual. The delegations from each of the 50 states get one vote. California and Montana would be equals.
The current Congress is pretty narrowly divided with 25 Republican-majority delegations, 24 Democrat-majority delegations and one tie, Pennsylvania. We don’t know what the next Congress will look like exactly, but we can assume it won’t be wildly different.
There are currently four states with caucus control decided by one seat: Arizona, Colorado, Florida and Michigan. One imagines there would be a great deal of deal making in such places. It would be hot stuff, indeed.
But however it goes, the House would pick a president before noon on Jan. 20 when the current president’s term expires.
Our Founders and the Constitution contemplated the possibility of contested elections and on three separate occasions it has fallen to Congress to resolve such disputes. If we end up screwing up this election beyond repair or if the participants try to wreck the republic in order to keep or obtain power, it won’t be the end of us.
Instead, it will be a heckuva lesson in civics and politics for us all.
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