Last week, President Donald Trump acknowledged that he’s already thinking about the same nightmare-inducing post-election scenarios that many of us are. During his press conference on Wednesday, Trump again made the baseless allegation that widespread mail-in voting would lead to mass fraud and claimed that election returns could be wrong by “5, 10, 15, 20 percent.” While these efforts to delegitimize the election are not new—and indeed stretch back to before the last presidential election—Trump is now sharing his possible contingency plans. After saying that counting ballots in November “will take forever” and might not result in a clear winner, Trump declared to reporters, knowingly, “at a certain point it goes to Congress. At a certain point it goes to Congress, you know that?”
Under what scenario would it go to Congress, as Trump warned? Well, the newly elected Congress is scheduled to count the Electoral College votes in a joint session—presided over by Vice President Mike Pence in his capacity as president of the Senate—shortly after the new Congress is sworn in on Jan. 3. The 12th Amendment states that if none of the candidates has a “majority of the whole number of Electors appointed,” then the House of Representatives votes on the next president by a majority vote of state delegations rather than individual members. This scenario is known as a contingent election, and it’s exceedingly rare in U.S. history. But in 2020, a 269–269 tie in the Electoral College is not out of the question (if you’re skeptical, here are several terrifyingly plausible electoral maps that could result in this outcome). Indeed, the electoral analyst Larry Sabato’s Crystal Ball on Wednesday published an article saying that if all remaining toss-up states in its analysis went to Trump, the current outcome would be a 269–269 Electoral College tie.
How might the ensuing contingent election scenario play out in the House? It could go any number of ways, especially if Democrats maintain their House majority and are willing to fight. Depending on the circumstances, Democrats seem much more ready to take the fight as far as they can than they were when George W. Bush claimed the presidency through a contested victory in Florida decided by the Supreme Court 20 years ago.
“We can’t have the same attitude as we did in 2000, where I think the Democrats lost the legal and political battle,” Rep. Ro Khanna told me when asked how far Democrats should take their fight in a disputed election this time around. Khanna recently published an op-ed in the Los Angeles Times with Yale Law professor Bruce Ackerman arguing that any conflicts over the electoral vote should be settled by a five-member commission created by Congress. If the bipartisan consensus needed to create the commission is impossible, though, Khanna acknowledges Democrats may have to go to the mattresses. “I think there’s a much tougher stance and understanding that this election may go weeks beyond Election Day,” he added.
David Boies, the attorney who argued Bush v. Gore on behalf of Al Gore’s campaign, was even more insistent that Democrats in Congress have an obligation to prevent a repeat of 2000. “I think—regardless of whether it is the Supreme Court of the United States or a state supreme court—if any court intervenes to try to change an election result or manipulate an election result, I then think it is up to Congress,” Boies told me.
What would happen if it did get to Congress? “I think we fight hard,” Khanna told me. “We do everything within our legal and constitutional rights to uphold what we see as the popular will.”
So how might Democrats fight back this time around? To answer that question, it’s important to understand the mechanics of the contingent election—which can be triggered by any scenario in which a majority is not reached, such as unresolved disputes over individual electoral slates. In a contingent election, the House votes on the next president by a majority vote of state delegations. This means Alaska’s one member would get one vote, all of the members from Alabama would combine to get one vote, all of the members from Arizona would combine to get one vote, and so on. A candidate would need to win 26 of 50 state delegations to be declared president. (In the Senate, meanwhile, each senator would vote respectively on the next vice president, with 51 votes necessary for victory.)
Currently, Republicans control 26 state delegations and are favored by Sabato’s site to retain that advantage. Democrats currently control 22, and the remaining two are essentially tied. Democrats need to win four additional House delegations to make Biden president in the case of a 269–269 Electoral College tie, but would need just two delegations to prevent Trump from becoming president if Pennsylvania—with a 9–9 split in the current delegation—remains tied. To get to 26 delegations after this election, Democrats would need to retain competitive seats in Iowa and Minnesota, and sweep a number of potentially competitive seats in four states from a pool of Florida, North Carolina, Pennsylvania, Michigan, Montana, Texas, and maybe Alaska.
That math might suggest an advantage to Trump. But there are many other variables. What if, for example, Joe Biden has won the popular vote by a significant amount, while failing to secure an Electoral College majority? Or what if the disputes over the vote count extend to congressional races that might tip state delegations one way or the other?
It may sound far-fetched, but none of this is outside the realm of possibility. According to Nate Silver, Trump would still have a 1-in-10 shot of winning the Electoral College even if the popular vote went to Biden by a 4- to 5-point margin. This means that Trump could lose by more votes than Mitt Romney lost by in 2012 and still have a shot at the presidency. Who would have the greater claim to popular legitimacy then, particularly in the case of an Electoral College tie?
Popular legitimacy, of course, doesn’t matter if Republicans control the state delegations and decide to vote uniformly to defend Trump, as they did during the impeachment saga in the House last year. But if things reach the point of a contingent election, Nancy Pelosi—should she retain her speakership—would likely have a few cards to play. Specifically, her House majority could vote not to seat declared winners in contested elections that may have been marred by voter suppression, bad vote counts, corrupted court decisions from a freshly packed Supreme Court, or even gerrymandering, thus tipping the balance of the House delegations to the Democrats and the presidency to Biden.
This scenario could require the type of procedural and parliamentary maneuvers that conservatives and some pundits might decry as beyond the pale, but which figures like Republican Senate Majority Leader Mitch McConnell and Attorney General William Barr have used and would use without batting an eye. Given the damage that Trump has already done to democratic institutions, Democrats might feel justified to do everything in their power to prevent Trump from winning a contested election. This is particularly true if the vote itself has been marred by suppression and outright miscounts.
Suppose the delegation count is 24–24, with Republicans leading slightly in disputed tipping point races in two remaining states. Here is where Pelosi could step in and show herself to be the Democrats’ answer to McConnell. Article 1, Section 5 of the Constitution gives the House majority the authority to “judge” any contested elections. Historically, the House has used that power to refuse to seat new members in contested races pending an investigation or a new vote. In 2018, for example, the House refused to seat the Republican candidate in North Carolina’s 9th District after a GOP operative was caught committing fraud to swing the race.
If there’s a challenge in any decisive House district—say, over issues with mail-in ballots not being counted, or disparities in votes being disqualified for signature mismatch, or ballots getting lost in the mail—the House could simply vote not to seat the candidate claiming victory pending an inquiry, even if a given state certifies that victory.
“I think that there is an enormous amount of precedent for not seating members,” Boies said, particularly when their election is still being contested in court. Prior to representing Gore at the Supreme Court, Boies represented California Rep. Jane Harman in 1995 when the Republican House majority refused to seat her pending a House inquiry after she was certified by the state to have won her race by 812 votes. “There are a number of other precedents where if there is any kind of a plausible challenge, the House will refuse to seat,” Boies said. “…It would be particularly significant this time because of the consequences, but it would not be anything I view out of the ordinary for the House to do that.”
Democrats will probably have plenty of grounds to choose from upon which to plausibly contest close congressional races this fall. Because of the increased use of mail-in balloting, hundreds of thousands of ballots are likely to be rejected for arbitrary technical reasons. During this spring and summer’s primaries alone, analysis by the Washington Post and NPR showed that at least half a million ballots were rejected for a variety of reasons, disproportionately affecting people of color and young voters. “More than 534,000 mail ballots were rejected during primaries across 23 states this year—nearly a quarter in key battlegrounds for the fall—illustrating how missed delivery deadlines, inadvertent mistakes and uneven enforcement of the rules could disenfranchise voters and affect the outcome of the presidential election,” the Post reported. The same will be true in the fall for any number of potentially critical House seats. In North Carolina’s early vote count, for instance, Black voters’ ballots are already being rejected at more than four times the rate as white voters’. That state could potentially face multiple contested congressional races that could threaten the Republican delegation majority.
Even if there is not a plausible electoral challenge in a key congressional seat in a key delegation under the contingent election scenario, there are other potential challenges the House might raise. These maneuvers would perhaps be even more controversial.
As one example, former 9/11 Commission vice chairman and Democratic Rep. Lee Hamilton, former Secretary of Defense and Republican Sen. William S. Cohen, and scholar Alton Frye have argued that the House majority should “refuse to seat a state delegation achieved through excessive gerrymandering,” because those gerrymanders have begun to place the “integrity of the House … in doubt.” Indeed, the Wisconsin delegation has been so gerrymandered that it is controlled by Republicans 5–3 even though Democrats won the statewide House vote by 7.5 points in 2018. Say Democrats win the statewide House margin by 10 points in 2020, but Republicans retain control because of extreme partisan gerrymandering and are set to tip the election in a contingent election to Trump despite a landslide against them and him in the state. How legitimate would that result be?
“I think that you are balancing a perception that could divide the country more than it is already against a need to preserve the integrity of the voting process and a desire to elect Biden,” Boies said. “If it was 55 to 45 [in Wisconsin], I would make that a strong case that partisan gerrymandering was depriving people of the right to have their votes counted.”
As Boies, Hamilton, Cohen, and Frye all noted, when the Supreme Court ruled against invalidating North Carolina’s gerrymandered maps in last year’s Rucho v. Common Cause, it said explicitly that gerrymandering presented “political questions beyond the reach of the federal courts.” If it were truly a political question beyond the reach of the federal courts, then the political branch of Congress could choose to remedy it by refusing to seat a heavily gerrymandered delegation until state officials created maps that reflected the will of their voters. “I think it is not unreasonable for the House to say we’re not going to seat these people until this problem is corrected,” Boies said.
If Democrats invalidated a delegation, it would certainly be controversial. “Because it would come in the context of a presidential election,” Boies said, “I think there is a danger that it, just like Bush v. Gore, is perceived as a branch of government using its power to determine the election in a way that … was not and is not common to the Constitution.” But a Bush v. Gore outcome may be coming one way or the other, and Democrats might have to decide if they’re willing to take things as far as Republicans have already shown themselves willing to go.
Khanna—part of the 53-member California House delegation that counts the same as Wyoming’s single member in a contingent election scenario—declined to discuss specific hypotheticals for how his side might fight, but said he would need to “look into the law” and that he would “consult people like Lee Hamilton and David Boies,” who have already endorsed some forms of constitutional hardball. Ultimately, after years of Republicans changing the rules on them, Democrats may have little choice but to throw out the old rulebook.
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