The campaign of President Donald Trump threatens the outcomes of swing states with litigation, aiming to litigate their way to a victory in the 2020 election. But the Founding Fathers intended that if the outcome of the Electoral College was contested or did not yield a winner, Congress, not the judiciary, would be the contingency plan.
The framers usually tried to discourage legislative interference in presidential elections. They needed an unbiased executive that could avoid ill-considered legislation and did not care about currying favor with members of Congress, as I had taught for two decades in my college course on presidential choosing.
That is why they formed the Electoral College, transferring the responsibility for nominating “electors” to state legislatures who will then choose the president.
Yet the framers could imagine situations where no presidential candidate can win an Electoral College majority, namely a fragmented competition between little-known lawmakers. They reluctantly delegated the duty to the House of Representatives to step in if that happens, possibly because it might lend some political credibility to a contingent mandate as the entity nearest to the people.
Election tied or disputed
The founders proved prescient: in the Electoral College, the 1800 and 1824 elections did not yield winners and were determined by the Assembly. In 1800, Thomas Jefferson was selected, and in 1824, John Quincy Adams.
Over time, it has effectively guaranteed that the Electoral College generates a winner by establishing a two-part structure of national nominating conventions that encourages parties to broker coalitions and unite around a single presidential candidate. While since the 18th century, the Electoral College has changed dramatically, it has largely kept Congress out of presidential selection.
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One way the 2020 race could end up in Congress is a tie in the Electoral College. The election will be tossed into the House in the highly unlikely situation that both Joe Biden and Donald Trump get 269 electors.
A more realistic outcome is that the prosecution of the Trump campaign ends up getting Congress interested in the 2020 election.
While the courts will determine particular matters of legal understanding in electoral controversies, as the Supreme Court did in 2000, they do not wish to be seen as determining the results of the 2020 election. Judges will refuse to hear cases that ask significant political issues where possible to leave these things for the political system to address.
Introduce Congress. The House will have to determine the election if no nominee meets 270 electors due to contested ballots.
Though the House has a Republican plurality, Trump will almost undoubtedly benefit from such a result. Here’s why: If the House were called in to elect the president in a gesture to small states afraid their voices would be silenced, the founders gave each state only one vote. To determine how to cast their single ballot, House delegations from each state meet.
California, population 40 million, and Wyoming, population 600,000, are similarly reflected by the election method.
Republicans prefer this arrangement. Since 2018, the GOP has occupied the House delegations of 26 states, exactly the amount needed under the rules of House presidential selection to achieve a majority. Yet a competitive 2020 election will not be determined by the present Assembly; it is the newly elected House and several Nov. 3 legislative elections are unresolved. So far, however the 26 congressional delegations they still occupy have been held by the Republicans, and the Democrats have lost control of two states, Minnesota and Iowa.
In Minnesota and Iowa, equally split delegations count as abstentions, and Republican gains switch both states from Democratic to abstentions.
Congressional Committee of Congress
The 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes is probably the most important example for a disputed 2020 election that results in the House. The election saw contested results of a total of 20 electoral votes in four states-Florida, South Carolina, Louisiana, and Oregon.
Tilden had 184 pledged electors out of the 185 required for victory in the Electoral College, except those 20 contested electors; Hayes had 165. Tilden was obviously the front-runner, so if all the disputed votes went to him, Hayes would win.
Congress formed a commission to settle the contested 1876 returns due to a post-Civil War law enabling Congress-read, Northern Republicans concerned about Black voter suppression-to challenge the vote count in Southern states and circumvent local courts.
The 15-member commission included five House members, five Senators, and five Supreme Court justices, as Michael Holt writes in his study of the 1876 election. There were identifiable partisan leanings among 14 of the commissioners: seven Democrats and seven Republicans. A justice renowned for his impartiality was the 15th vote.
When one neutral commissioner retired and was succeeded by a Republican judge, the expectation of a non-partisan result was dashed. To send Hayes the 20 contested electors, the commission voted along party lines.
Republicans were compelled to negotiate a bargain to keep the Democratic-dominated Senate from derailing Hayes’ single-vote victory over Tilden by declining to confirm his decision: Drop Reconstruction, their post-Civil War South policy of Black political and economic participation. This paved the way for apartheid under Jim Crow.
Bush against Gore
The 2000 election is the first recent example of returns from disputed elections.
George W. Bush and Al Gore battled in Florida’s second machine recount for a month for Bush’s slim, 327-vote advantage. This political and judicial dispute was resolved by the Supreme Court in December 2000, in Bush v. Gore, following a case in state courts.
But a precedent was never meant to be set by Bush v. Gore. In it, “our attention is limited to the present circumstances,” the justices clearly said. Indeed the court may have decided that the issues raised were political, not legal, and refused to hear the appeal.
The House must have decided the 2000 election in that scenario. On the first Monday after the second Wednesday in December, the Electoral College must cast its ballots. It’s Dec. 14th this year. Under the Electoral Count Act of 1887, where contested state vote counts are not settled by six days before that date, Congress will step in.
This may have happened in 2000, and this year it is conceivable.