How Failures of the Electoral College Could Produce President Nancy Pelosi

During the last twenty years or so, I've watched the debate over the Electoral College play out.  Democrats want to eliminate it in favor of a nationwide popular vote.  Republicans want to keep it, arguing the EC is operating as intended because it forces presidential candidates to campaign in less populated areas of the country.

Let me be clear about one thing - the EC has NEVER operated as intended.  The EC was enacted because the Founders did not believe that the average American voter had the knowledge and wisdom make the best decision as to who would be President.   The EC was intended to be a deliberative body, not a rubber stamp on the popular vote in each particular state.  That notion came later.  The Constitution says that state legislatures decide on how electors are to be selected, a decision all 50 states now leave to the popular vote, 48 by a winner-take-all system, 2 by congressional district.

The state legislatures, having given that decision on selecting electors to the voters (when you vote for a President, you're actually voting for a slate of electors), could arguably take it back.  The most likely scenario for this possibility is if the state's popular vote is in dispute and there is some fear that an electoral slate won't be chosen by the constitutional deadline.

Post Election Day, you quite possibly could see a plethora of lawsuits filed over the counting of ballots.  Pursuant to the Electoral Count Act of 1887, these disputes need to be resolved by December 8th so electors can cast their ballots, in their respective state capitols, for President on December 14th.  Those electoral votes are then opened by the Vice President (who of course is President of the Senate) in a joint session of Congress which will be held on January 6, 2021.   The newly-elected members of Congress take office on January 3rd.

If some swing states fail to certify a slate of electors due to a disputed vote count, and those disputes are not resolved by a court, the two major party presidential candidates could fall below the 270 electoral votes (out of 538 total) necessary to win.  

In that case, the election moves Congress via what is called a "contingent election." The House picks the President (among the top three electoral vote getters) voting by state delegation.  The Senate decides the Vice-President ((among the top two Senate vote getters).  This is the way you could actually end up with a President of one party and a Vice-President of the other party.

We have had two contingent elections for President (1800 and 1824) and three for Vice-President (1800, 1824, and 1836).  In those elections, the outgoing (lame duck) Congress picked the President and Vice President.  But the 20th Amendment, ratified in 1933, moved up the date for members of Congress and the President/Vice-President to take office.  Because of this change, most scholars believe the newly elected members of Congress would, most likely, be the ones participating in the contingent election.

Currently, Republicans have a majority in 26 House delegations, the Democrats 22. There are two ties.  There needs to be a majority vote in the House, so if the most delegations a presidential candidate can win is 24, that means on January 20th, we have an "Acting President," who pursuant to 1947 legislation would be the Speaker of the U.S. House of Representatives.  

Can the Democrats win the seats required to get to 26 in order to win a contingent election?  Possibly, but not likely.   Here are the closest House delegations:

Alaska:  0 Democrats, 1 Republican
Florida:  13 Democrats, 14 Republicans
Montana:  0 Democrats, 1 Republican
Wisconsin: 3 Democrats, 5 Republicans

Then you have two which are currently tied:

Michigan: 7 Democrats, 7 Republicans
Pennsylvania: 9 Democrats, 9 Republicans.

Okay, let's throw out Wisconsin because none of the 5 congressional seats up are considered to be competitive.  But Florida has a couple Republican house seats which are competitive.  As far as Republican-leaning Alaska and Montana, Democrats actually have a decent shot of winning one or both of those at-large congressional seats.

Then you go the states that are tied.   In Michigan, the seat being vacated by former Republican Justin Amash is somewhat competitive now that the popular, libertarian politician is leaving office.  In Pennsylvania, Democrats have a shot at winning two districts held by Republicans.

President Nancy Pelosi?

So, let's say half of these six opportunities work out for Democrats and they end up controlling 25 state delegations.  That would still mean no Joe Biden, but it would also mean no Donald Trump.  Hello, Acting President Nancy Pelosi.  Pelosi would remain Acting President until a deal can be struck so someone gets to 26 delegations.

Oh, and I didn't even get into the possibility that an elector(s), or a member(s) of the House in a contingent election, could be bribed to flip his or her vote.

Yep, the Electoral College process set up by our Constitution, as modified by the 12th Amendment, is one huge mess.

OOP's short takes:

• I'm smelling 1980.  In that election, a Reagan landslide helped elect several Republican Senate candidates who were long shots going into Election Day, including Indiana's Dan Quayle.  No, I don't think Biden wins in a 1980-type landslide...Trump's solid group of supporters will make sure that does not happen.  But I can see Democratic Senate candidates winning in places they were not expected to be competitive.  While Democrats were given a decent chance of netting 3-4 seats, they are now looking competitive in several other races.  The Democrats might end up netting 7 seats, maybe more.
• It also looks like the Democrats are on the verge of padding their majority in the House.  Remember these districts are gerrymandered, most by Republican legislatures.  So Democrats are winning in districts designed to be held by Republicans.
• Back to the Senate, the Arkansas Democratic Party needs to be punished for its colossal blunder in not fielding a Democratic Senate candidate (actually the sole Democrat dropped out two hours after the filing deadline and could not be replaced) against Republican Senator Tom Cotton.  Given how things have turned out in 2020, Democrats would have had an outside shot at Cotton's seat.  Cotton is one of the worst Trump enablers in the Senate...as well as a certifiable jerk.  It would have been fun watching him squirm like South Carolina Senator Lindsey Graham is currently doing.
• Instead of the court-packing idea as a way of protecting abortion rights, Democrats are eventually going to figure out they can simply pass a law codifying Roe v. Wade.  Although it will be challenged under the theory that the Constitution does not give Congress the authority to pass such a law, that is always an uphill fight in courts.  (It did not work on Obamacare.)  State legislatures could also pass laws providing for a right to an abortion.  Regardless, I think if the decision goes to the legislature, you might see legislators take a closer look at those second trimester abortions (allowed by Roe) which make even some abortion supporters uncomfortable.  FYI, 90% of abortions take place during the first trimester.
• Covid-19 numbers are rising again.  From the beginning, our No. 1 focus should have been on testing, particularly developing rapid tests.  Trump's opposition to testing, because he wanted to keep down the numbers, will go down as the President's biggest failure in office.  Nearly 210,000 Americans have died from Covid-19.  Many of those deaths are the due to Trump's inability to deal with the public health crisis in a reasonably competent way.
• It sounds like the Commission on Presidential Debates is leaning toward giving the moderator a "mute" button to silence candidates who are violating the rules by interrupting the other candidate's time.  The Trump campaign is screaming that this is a change in the rules which they do not approve.  No, that would be a change in how a rule, the Trump campaign agreed to, will be enforced.  Nonetheless, that Trump wants the right to violate a rule he agreed to is a perfect metaphor for a President who considers himself above the law.
• Possibly Trump will be so upset that he will threaten to not participate in any more debates.  We can only hope.