WASHINGTON — The 2020 presidential election could be so tight, and the result so hotly contested, that the losing party refuses to concede, triggering a chaotic free-for-all in which Congress, the courts, and, in the most extreme case, the military could determine the winner.
It may sound far-fetched, but the Constitution has major gaps when it comes to deciding a contested presidential race. The peaceful transition of power after an election has never rested so much on a rigid set of rules but on politicians being willing to admit they lost. President Donald Trump, however, has refused to commit to giving up the White House if former vice president Joe Biden wins.
Trump is also spouting wild, unsupported conspiracy theories about how the election is being rigged through mail-in ballots at a time when the failed response to the COVID-19 pandemic is driving tens of millions of people to vote by mail. And he is calling on his supporters to show up at polling locations, raising fears of voter intimidation.
So what happens if Trump claims he was robbed? Discussions with constitutional experts reveal how a single governor’s decision could spiral into each side blocking the other from seizing the White House. It’s a scenario made possible by the Constitution’s 12th Amendment.
“We have an advantage if we go back to Congress,” Trump told his supporters at a rally in late September in Pennsylvania. And he’s right. The 12th Amendment paves the way for the possibility that a minority of Republicans in the House of Representatives could give the presidency to Trump, even if Biden wins the popular vote and Electoral College.
Such a sequence of events would be historically unprecedented and might never come to pass. But if both sides are truly willing to fight for the White House, then wild scenarios — like states being stripped of their congressional delegations or election results from two years ago being challenged — are suddenly on the table.
How this could play out
Let’s say the election results are tight and made even murkier by days or weeks of counting and recounting mail-in ballots. If Biden wins, it will be because of victories in swing states with Republican-controlled state legislatures like Arizona, Michigan, Pennsylvania, and Wisconsin. For simplicity’s sake, let’s say one single state makes up the margin of victory, and let’s say it’s Florida, for obvious reasons.
Trump could start spouting unproven theories or far-fetched conspiracies — like alleging China interfered to rig Florida for Biden with fake ballots. Or that Democrats voted multiple times. Or that election workers threw out his votes. Outraged Trump supporters would demand local Republicans do something. And they would have two main options.
“Things that seem implausible can suddenly be on the table in these hard-fought contests.”
The president is not elected by the popular vote — just because a candidate got the most votes doesn’t mean they’ve won — as Trump and George W. Bush have recently demonstrated. Instead, voters elect each state’s slate of electors, the people who cast the Electoral College votes that decide the presidency. Electors need to be certified by their state’s executive branch (by either the secretary of state or the governor, depending on the state. In Florida it’s the secretary of state.) Florida’s Republican secretary of state could declare the results fraudulent and refuse to certify the electors, blocking them from voting for Biden. Essentially, Florida would deny Biden the 270 Electoral College votes he needs to win by refusing to send in its results.
Alternatively, the Republican-controlled legislature could cite voter fraud, vote to recall the electors and then appoint its own group. Congress would then have to decide whether to count those electors. In either scenario, the question of who won the election lands in Congress’s lap.
“I don’t know how plausible it is. It seems like one of those things that would not be very likely, and yet Florida thought about it pretty seriously in the midst of the 2000 election dispute,” said Keith Whittington, professor of politics at Princeton University. “Things that seem implausible can suddenly be on the table in these hard-fought contests.”
Kicking it to Congress
Under the 12th Amendment to the Constitution, if no candidate gets a majority of Electoral College votes, then the House of Representatives picks the president out of the top three finishers. This would also happen in a 269–269 Electoral College tie.
The next Congress, which will begin in January, decides the presidency. Democrats control the House now and are odds-on favorites to hold onto their majority after November’s elections.
But by the wording of the 12th Amendment, it is not a majority of members that selects the president — it is a majority of state delegations. This means the US representatives of each state get together to cast a single vote. So California’s 53 representatives, 45 of whom are currently Democrats, would have the same weight as the vote cast by Wyoming’s single Republican representative.
This is the “advantage” that Trump was referencing. There are in total fewer Republicans in the House; Democrats outnumber them 232 to 197. But on a state-by-state basis, Republicans have the majority of 26 state delegations while Democrats control 22. (Pennsylvania is split, and in Michigan the balance of power comes down to Libertarian Rep. Justin Amash.) Speaker Nancy Pelosi is using this scenario to draw support for Democrats in swing states. “If Trump can’t win at the ballot box, he wants the House to deliver him the presidency,” she wrote in a letter to her caucus, which was obtained by BuzzFeed News.
The House electing the next president would, of course, be unprecedented in modern times. The only time the 12th Amendment decided the presidency was two centuries ago, in 1824, when four viable candidates split the vote and no one earned a majority.
Democrats would have a rarely used tool to fight back. Pelosi could use her majority, and Section 5 of Article 1 of the Constitution, to flip the situation around and ensure that the Democrats control more state delegations than Republicans do.
Here’s how that might work: Each chamber of Congress — the House and the Senate — has the power to decide contested elections of its own members. In modern times, these fights are mostly settled by the courts, but Pelosi could reclaim that power.
Democratic candidates who lost close races could contest the results. Their challenges would ultimately be put to a vote on the House floor, where Democrats are likely to have control. By challenging a few key races in states like Pennsylvania, Florida, or Montana, and then ruling in their own favor, Democrats could cement their majority of the state delegations and ensure they control the keys to the White House.
“At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?”
This maneuver was used frequently in the early 19th century to pad majorities. But it would be a radical breach of modern norms. Dan Carpenter, a government professor at Harvard University, argues that while this scenario would be deeply unfortunate for the country, reconstituting Congress could be justified if Republicans block a presidential candidate from an Electoral College majority.
“If this happens, we’ve crossed a line in the history of the republic. Republican government is about the will of the majority. So we’re already in kind of a nuclear war if the election gets thrown to the House,” Carpenter told BuzzFeed News. “Usually two wrongs don’t make a right — but in this case, they could.”
If the election results strip Republicans of their state delegation majority in the next Congress, the party could try to force the current Congress to decide the presidency. But the ability to challenge election results does not expire. Pelosi could start overturning 2018 races, removing Republican members of Congress who have already served in the House for two years, to give Democrats the majority of state delegations right away.
The Republican-dominated Supreme Court, which will likely include Trump’s nominee Amy Coney Barrett by this point, could step in to declare Pelosi’s actions unconstitutional. But Pelosi could ignore them and say the Constitution rests these decisions with her branch of government, not the court’s.
“At that point, we’re like, OK, who’s got the keys to the military?” said Carpenter. “Again, I do not want us to get there.”
Now let’s take the alternative scenario from above, where the Florida legislature replaces the pro-Biden slate of electors with a pro-Trump slate. Congress oversees counting the Electoral College votes. Both slates of electors from Florida — those ready to vote for Biden, and those for Trump — would surely show up in Washington claiming to represent the true will of the people. Who chooses which set of votes to count? Some say it would be Vice President Mike Pence in his capacity as president of the Senate. But most experts agree that decision falls to Congress. What happens if a split Congress can’t agree on which votes to count? The Constitution has no answer.
In a true nightmare scenario, Pelosi declares the electors invalid, refuses to count the votes, and claims, in the scenario laid out above, that the House has the power to declare Biden the winner. Then, Senate Republicans rally behind Trump while Pelosi and the Supreme Court face off over who has authority.
“If it’s a contest between Nancy Pelosi and the Supreme Court, we have no idea,” said Lawrence Lessig, a professor of law and leadership at Harvard Law School. “At some point, it’s the military’s judgment — because if Trump refuses to leave, who’s going to show up at the White House on Inauguration Day and escort him out?”
How to avoid a disaster
Fundamentally, a resolution will not come from the wording of laws but the people who make up America’s institutions. These nightmare scenarios only occur if there is a close election and politicians seize on that uncertainty to try to grab power for their own party.
Modern election crises have been averted because one side agreed to step down. In 2000, Al Gore accepted the Supreme Court’s judgment in Bush v. Gore rather than take the fight to Congress. In 1960, Republicans alleged that voter fraud carried John F. Kennedy to his narrow victory over Richard Nixon, and they tried to overturn the results in 11 states. But Nixon ultimately conceded rather than pursue that fight.
Trump has refused to commit to a peaceful transfer of power and is openly laying the groundwork for contesting the election. But he cannot do it on his own. Trump would need the Republican establishment at the state and federal levels behind him to have any chance of success. Republicans in the Senate have insisted there will be a peaceful transfer of power. Senate Majority Whip John Thune, a Republican, even said his party would stand up to Trump if the president tried to violate the Constitution to stay in power.
This may provide cold comfort given that Republicans have a long and colorful history of reversing their stances and capitulating to Trump, with only a few mostly symbolic exceptions. Extreme polarization means Republicans will also face pressure from the MAGA base that equates losing this election with the possible end of democracy.
But Whittington said he doesn’t expect the country to go down that road because the consequences of being widely seen as stealing the election would be so disastrous. He said the extreme scenarios of the military keeping Trump in power would clearly lead to unrest in the streets far more severe — and violent — than the protests already sweeping the country.
“That’s one reason I think we won’t get there — because everyone understands how bad that would be,” said Whittington. “That’s not something that goes away after it gets resolved. That’s something that permanently damages how our constitutional system operates.”
An active Supreme Court could also shut down moves to steal the election before the battle gets to the House. Courts tend to be hesitant in deciding elections. In 2000, the Supreme Court initially tried not to get involved in the Florida recount before ultimately intervening. But if state executives refuse to certify their slate of electors, the Supreme Court could step in and rule that they have no choice but to do so.
Lessig said he believes the courts would ultimately get involved to avoid the appearance of a stolen election. “These are people who think about history. That’s what their whole lives are about,” he said.
Still, at a time when norms are being shattered and the president is openly talking about neutering the United States Postal Service’s ability to count millions of mail-in ballots, Lessig says unimaginable scenarios have become very imaginable.
“The question is not what’s reasonable or fair,” he said. “The question is what’s possible.” ●