Who Picks the President if the Election Goes to Court?
Imagine that it's election night, almost midnight, in fact. And now let's consider a couple of possible scenarios. Number one: Donald Trump wins reelection, but Democrat candidate Joe Biden refuses to concede, claiming the President's victory is illegitimate because of Russian interference and vows to exhaust all legal remedies.
Or scenario number two: Democrat Biden, after trailing on election night, pulls out a come from behind victory after millions of vote-by-mail ballots from blue states are counted over the next 72 hours. The President and his legal team, claiming these votes are illegal, then, as the cliche goes, lawyer up.
So, what's next...outside of a virtually unprecedented national crisis? And who picks the President of the United States if, by the mandated date of December 14, the 2020 election is still in the courts and the Electoral College is unable to vote because election results across the country have not been certified?
It's Nancy Pelosi and the House of Representatives...sort of.
That's right. At that point, the election will then be decided by the House of Representatives, as prescribed in the Constitution's 12th Amendment.
The Amendment says, “if no person have such (Electoral College) majority, 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.”
But the Amendment goes further. "...in choosing the President the votes shall be taken by states, the representation from each state having one vote."
What that means is, despite there being 435 members in the House, there are 50 states and now each state gets a single vote. And how that vote is determined is based on the count of representatives of each party in each state. Louisiana, for example has a House delegation of five, four Republicans and one Democrat. Currently, nationwide, Republicans control 26 of the 50 delegations; Democrats have 23; Pennsylvania is tied.
So, Donald Trump, with 26 votes, would be elected, right? Well, again, not so fast.
What if...Speaker Nancy Pelosi, thought mandated by the Constitution to have an "immediate" election, tries to delay the vote until after inauguration day because Democrats, in Congressional races, have taken control of the majority of House delegations?
Right. It gets messier and messier. Unless the GOP keeps solid control of the House.
So, next time you think your vote in EVERY race doesn't have far reaching implications, far more than you ever imagined, think about this. And if you think it'll all be over on election night, barely five weeks away...guess again. Odds are the final decision won't be on election night. And maybe for some time after that.