Congress could select the president in a disputed election

9 mins read

Donald Brand, College of the Holy Cross

President Donald Trump’s marketing campaign is difficult results of battleground states with lawsuits, hoping to litigate its way to a win in the 2020 election. But the Founding Fathers meant for Congress – not the courts – to be the backup plan if the Electoral College end result was disputed or didn’t produce a winner.

Generally, the framers sought to keep away from congressional involvement in presidential elections. As I’ve taught for two decades in my college course on presidential selection, they wished an impartial government who could resist ill-considered laws and would not care about currying favor with members of Congress.

That’s why they created the Electoral College, assigning to state legislatures the accountability for selecting “electors” who would then decide the president.

But the framers could foresee circumstances – specifically, a fragmented race between little-known politicians – the place no presidential candidate would safe an Electoral College majority. Reluctantly, they assigned the House of Representatives the accountability to step in if that occurred – presumably as a result of as the establishment closest to the folks, it could bestow some democratic legitimacy on a contingent election.

Tied or contested election

The founders proved prescient: The elections of 1800 and 1824 didn’t produce winners in the Electoral College and have been determined by the House. Thomas Jefferson was chosen in 1800 and John Quincy Adams in 1824.

Over time, the improvement of a two-party system with nationwide nominating conventions – which permits events to dealer coalitions and unite behind a single presidential candidate – has mainly ensured that the Electoral College produces a winner. Though the Electoral College has modified considerably since the 18th century, it has largely saved Congress out of presidential choice.

A tie in the Electoral College is a technique the 2020 election could find yourself with Congress. In the extraordinarily unlikely situation that each Joe Biden and Donald Trump get 269 electors, the election could be thrown into the House.

A extra possible situation is that the Trump campaign’s litigation winds up getting Congress concerned in the 2020 election.

Though courts will resolve particular questions of authorized interpretation in voting disputes, they don’t wish to be perceived as deciding the 2020 election end result, as the Supreme Court did in 2000. Where doable, judges will decline to listen to lawsuits that ask massive political questions and depart these points for the political system to resolve.

Enter Congress. If neither candidate will get to 270 electors as a consequence of disputed ballots, the House must resolve the election.

Though the House has a Democratic majority, such an outcome would almost certainly benefit Trump. Here’s why: In a concession to small states involved their voices could be marginalized if the House was referred to as upon to decide on the president, the founders gave just one vote to every state. House delegations from every state meet to resolve methods to forged their single vote.

That voting process provides equal illustration to California – inhabitants 40 million – and Wyoming, inhabitants 600,000.

This association favors Republicans. The GOP has dominated the House delegations of 26 states since 2018 – precisely the quantity required to succeed in a majority underneath the guidelines of House presidential choice. But it’s not the present House that will resolve a contested 2020 election; it’s the newly elected House, and lots of Nov. 3 congressional races stay undecided. So far, although, Republicans have retained management of the 26 congressional delegations they at the moment maintain, and Democrats have misplaced management of two states, Minnesota and Iowa.

Evenly divided delegations rely as abstentions, and Republican beneficial properties in Minnesota and Iowa are shifting these states from Democratic to abstentions.

House Majority Leader Nancy Pelosi is reportedly getting ready for the risk that presidential choice finally ends up in the House. Tom Williams/CQ-Roll Call, Inc via Getty Images

Congressional fee

Perhaps the most relevant precedent for a contested 2020 election that winds up in the House is the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That election noticed disputed returns in 4 states – Florida, South Carolina, Louisiana and Oregon – with a complete of 20 electoral votes.

Excluding these 20 disputed electors, Tilden had 184 pledged electors of the 185 wanted for victory in the Electoral College; Hayes had 165. Tilden was clearly the front-runner – however Hayes would win if all the contested votes went for him.

Because of a post-Civil War rule permitting Congress – learn, Northern Republicans anxious about Black voter suppression – to dispute the vote rely in Southern states and bypass native courts, Congress established a fee to resolve the disputed 1876 returns.

As Michael Holt writes in his examination of the 1876 election, the 15-member fee had 5 House representatives, 5 senators and 5 Supreme Court justices. Fourteen of the commissioners had identifiable partisan leanings: seven Democrats and 7 Republicans. The fifteenth member was a justice recognized for his impartiality.

Hope of a nonpartisan end result was dashed when the one neutral commissioner resigned and was changed by a Republican decide. The fee voted alongside celebration strains to offer all 20 disputed electors to Hayes.

To stop the Democratic-dominated Senate from derailing Hayes’ single-vote conquer Tilden by refusing to verify its choice, Republicans have been pressured to make a deal: Abandon Reconstruction, their policy of Black political and economic inclusion in the post-Civil War South. This paved the approach for Jim Crow segregation.

Bush v. Gore

The 2000 election is the solely trendy precedent for contested vote returns.

George W. Bush and Al Gore argued for a month over Bush’s slim, 327-vote benefit in Florida’s second machine recount. After a lawsuit in state courts, this political and authorized battle was determined by the Supreme Court in December 2000, in Bush v. Gore.

Protesters hold pro-Bush signs while police do crowd control, with Supreme Court in the background
The scene outdoors the Supreme Court, Dec. 11, 2000. Shawn Thew/AFP via Getty Images

But Bush v. Gore was by no means meant to set a precedent. In it, the justices explicitly acknowledged “our consideration is limited to the present circumstances.” Indeed, the court docket could have concluded that the points introduced have been political, not authorized, and declined to listen to the case.

[Deep knowledge, daily. Sign up for The Conversation’s newsletter.]

In that case, the House would have determined the 2000 election. The Electoral College should forged its ballots on the first Monday after the second Wednesday in December. This 12 months, that’s Dec. 14. If disputed state vote totals should not resolved by six days previous to that date, Congress can step in, underneath the 1887 Electoral Count Act.

This could have occurred in 2000, and it’s conceivable this 12 months.

This is an up to date model of an article initially printed Oct. 9, 2020.

Donald Brand, Professor, College of the Holy Cross

This article is republished from The Conversation underneath a Creative Commons license. Read the original article.


Charlene is a Bay Area journalist who hails from the small community of Fresno. Drawing from her experience writing for her college paper, Charlene continues to advocate for free press and local journalism. She also volunteers in all the beach cleanups she can because she loves the water.