Legal Scenarios of a Contested Presidential Election
As we are all well aware, thanks to COVID-19 (and/or the government’s massive overreaction thereto), the 2020 Presidential election is going to play out like no other, and it looks like it’s going to be a bumpy ride. So, grab your snacks and be ready to watch as the craziness unfolds.
Why is this election different?
Due to health concerns over in-person voting during the pandemic, more Americans will mail in their ballots this year than in any election in America’s history. In fact, the New York Times reports that 75 percent of Americans are eligible to vote by mail this year, and if election turnout increases as expected, about 80 million ballots will be sent to election offices this fall.
On the surface, making it easier for people to vote by sending in their ballots seems like a good idea, right? Well, as the saying goes, “easier doesn’t always mean better.”
There are plenty of problems that are likely to result due to the large number of people using mail-in voting. But two issues are going to be particularly troublesome. First, voting by mail is far more susceptible to fraud than casting a ballot in person. Second, counting the ballots could take a very long time – possibly even several months.
A former election official with the New York State Board of Elections said it can take weeks for mail-in ballots to be counted in states where just 5 percent vote absentee. If just 20 percent of the population votes by mail, imagine how long it will take to count these ballots. It could realistically take months to count them, and even then, there is no guarantee that either candidate would accept the results.
How long do states have to count their ballots?
One way or another, states are required to convene their electors and transmit the results via certified mail to the President of the Senate and the Archivist of the United States by December 14, 2020.
On Jan. 6, Congress is supposed to convene to count the electoral votes and certify the winner of the election. As the sitting Vice President, Mike Pence will preside over this count as each state is called in alphabetical order to file its votes. At the end of the count, the Vice President announces the results and asks if there are any objections.
What if there isn’t a winner?
If neither candidate reaches the necessary 270 electoral votes, then the 12th amendment to the U.S. Constitution provides that the House of Representatives gets to pick the President. This is called a “contingent election.” In a contingent election, House members choose from among the three candidates with the most electoral votes. Each state delegation gets just one vote, regardless of state population size, and 26 votes are required to win.
Keep in mind, it will be the newly elected members of the House that convene on January 6, 2020 who make this enormous decision, not the current members.
The current Congress is pretty narrowly divided with 26 Republican-majority delegations and 22 Democrat-majority delegations. Pennsylvania and Michigan have either tied or plurality delegations. There’s no crystal ball to tell us what the next House of Representatives will look like, but it’s possible – and even likely – that some seats will flip. However, if things stay the same, President Trump would likely win a contingent election. But, if one or two Republican House seats flip and a majority of delegations go to Democrats, we’re looking at a Biden presidency. It could literally come down to two House seats.
Who becomes Vice President in a Contingent Election?
It’s the responsibility of the Senate to choose the Vice President, and they would do so by a simple majority, which makes it entirely possible to have a Trump/Harris or even Biden/Pence administration. If the media thought they had a lot to write about with the current administration, think about what they could do with a Trump/Harris White House!
What if the House fails to elect a president by inauguration day?
If the House of Representatives hasn’t selected a President by inauguration day, then based on the 20th Amendment, the Vice President-elect acts as President until a President is picked. If there is no Vice President selected by Inauguration Day, then the Presidential Succession Act is implemented. In this case, the Speaker of the House of Representatives, the Senate president, or a cabinet officer, in that order, would act as President until there is a President or a Vice President.