Contingent Election: What happens if there is no clear winner between Trump and Biden by December 23, 2020?

November 4, 2020 - Categories: Legal Articles

What happens if there is no clear winner between Trump and Biden?

After the November 3rd election for U.S. President, as of November 4th, neither candidate has 270 electoral votes needed to win the Presidency.

Several states (Michigan, Georgia, Pennsylvania, North Carolina, and Arizona) are too close to call, will have delayed results due to mail-in vote counting, and may be tied up for weeks in recounts and lawsuits. President Trump's legal team, for example, has already called for a re-count in Wisconsin, a state called for Joe Biden.

On December 23rd, the electors must certify their electoral votes for each state. If by this date, there are not enough electoral votes to certify for either candidate to reach 270, then the U.S. Constitution requires the U.S. House to choose the President

However, as explained below, the U.S. House does NOT vote based on a House vote. Rather, each state gets one vote based on the majority of House members in their state.

This vote must take place after January 3, 2021, and the U.S. Constitution requires the new Congress (117th in this case) to take this vote (i.e., the Congress that will be installed on January 3, 2021 based on the November election results).

 

As of this writing, Republicans picked up house seats and still have at least 26 States with Republican delegations (more Republican U.S. House Reps than Democrat House Reps in their state), 2 states are tied (MI and PA), and 22 states have Democrat delegations.

Thus, there will be 26 Republican votes, 22 Democrat votes, and 2 possibly stale-mate votes.

As a result, if neither candidate has at least 270 votes by December 23rd, then the new Congress after January 3rd will decide who is the President. If all 26 Republican delegations vote for Trump, even if all 22 Democrat delegations and the two tied-delegations vote for Joe Biden, then Donald Trump will be relected as the 45th President of the United States.

Nancy Pelosi will never, under any circumstances, be the President. 

The detailed Constitutional Analysis supporting the above conclusions is laid out below.

WHY PRESIDENT TRUMP COULD BE ELECTED PRESIDENT EVEN WITHOUT 270 ELECTORAL VOTES.

On a recent episode of Joy Reid's program, "The ReidOut," Harvard Law School professor Laurence Tribe joined Reid to discuss what would happen if there is no clear winner of the presidential election by December 23, 2020 (electoral-vote deadline) or even by the last day of President Trump's term, January 20, 2021. With concerns over the coronavirus as well as possible delays in counting and certifying mail-in votes, this scenario is a real possibility. 

 

In that scenario, who then becomes President on January 20, 2020 when the Trump/Pence term expires?

According to Mr. Tribe, Nancy Pelosi would then become President. Mr. Tribe confidently informed Joy that, "The default solution in our system is President Nancy Pelosi. And I can think of worse things than that."

Joy Reid was absolutely giddy with, well, joy. She even tweeted about this potential outcome.

Mr. Reid was of course speaking of the line of succession spelled out in the Presidential Succession Act of 1947, which states that the Speaker of the House of Representatives would act as President in the event that neither the President nor Vice-President are available or capable of acting. The Presidential Succession Act was created by Congress via Constitutional Authority in Article II, Section 1, Clause 6, which states:

"Congress may by Law provide for the Case of Removal, Death, Resignation, or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

If the Presidential Succession Act of 1947 were applicable in this scenario, then Nancy Pelosi could certainly become President. Unfortunately for Joy Reid, however, Mr. Tribe was incorrect. Clause 6 of Article II, Section 1, and the Presidential Succession Act do not apply here.

The Presidential Succession Act applies only upon the "removal, death, resignation, or inability" of the President, and then the Vice-President (for there to be a President Pelosi). Inability is also referred to in the Act as a "disability."

However, in the case of an uncertain election result, none of these conditions are met. If we do not know the outcome of the Biden/Trump election, then President Trump has not been "removed," because he very well may have re-elected (we just don't know it yet). He also has not resigned nor is he dead or disabled in that case.

More relevant to the discussion, however, is that the Constitution already deals exactly with the situation of no clear winner in a Presidential contest via Article II, Section 1, Clause 3  of the Constitution (electoral college), and the 12th Amendment to the Constitution (which specifically amended Clause 3).

The 12th Amendment states:

"[I]f no person have such majority [of electoral votes to win the Presidency], then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President."

This means that the Constitutional way of dealing with the above hypothetical scenario is for the House of Representatives to choose the President from the three candidates with the highest number of electoral votes. This is not the Speaker of the House becoming President; this is the House of Representatives choosing the President from the top-three electoral vote-getters.

In our scenario, both Trump and Biden would have "some" electoral votes for each of them, and would be the two top electoral-vote getters. If a third-party candidate gets any electoral votes, they could join the House party too.

At this point, some might assume that the Democrat-controlled House of Representatives will be voting for the President. But that is not how the 12th Amendment handles this vote.

The 12th Amendment continues: "But in choosing the President, the votes shall be taken by states, the representation from each state having one vote."

This clause means that the President is not selected by a majority of the U.S. House of Representatives, but rather by "one vote" from each state, with each vote representing the majority of the U.S. Representatives in that state. Each state gets one vote by having its U.S. House Representatives within that state (called a "state delegation") vote for the President from the top-3 electoral vote-getters.

As an example, California (which currently has 46 Democrat U.S. House Representatives and only 7 Republican representatives) would likely vote 46-7 for Joe Biden; thus, California's "one vote" would be one vote for Joe Biden (not 46). Likewise, Alabama (6 Republicans, 1 Democrat) would likely vote 6-1 for President Trump's re-election, thus giving Alabama's "one vote" to Trump.

Each state (even those who had a flawless election results) would in turn be required to vote for their presidential candidate by a majority vote of their state delegation of U.S. representatives. Thus, states with a majority of Democrat U.S. Representatives would likely vote for Biden; and the Republican-majority states would likewise vote for Trump. The two tying states could go either way -- or tie, cancelling each other out.

Therefore, not only will there be NO President Pelosi, but there will also be NO vote for the President by the Democrat-controlled House majority. 

Currently in the new 117th Congress, which begins January 3, 2021, there are STILL (even after the Nov 3 elections) 26 states with a Republican majority of U.S. Representatives, 22 states with a Democrat majority of U.S. Representatives, and two states (Michigan and Pennsylvania) with an equal number. Per the Constitution, there must be an "absolute majority," meaning that 26 states must vote for the President to win.

In this scenario, if all of the states with majority-Republican Representatives voted for Trump, then Trump would win the minimum-required 26 state-votes for President, winning re-election by a squeaker. Only if Democrats won all 23 of their states, and convinced a few Republicans to vote for Joe Biden in a few key states, could the "Democrat-controlled House" pull out a win for Joe.

Thus, contrary to the proclamation of esteemed Harvard Professor Laurence Tribe, "The default solution" for this hypothetical (but increasingly plausible) scenario is not a "President Nancy Pelosi," likely much to Joy's dismay.

Instead, the "default solution in our system" would very likely produce the re-election of President Donald J. Trump.