As the counting of votes in Arizona, Georgia, and especially Pennsylvania continues, most of the press and punditry have concluded that Vice President Biden has won the 2020 election. Certainly, a substantial majority of the rest of us are suffering from “election fatigue” and eager for this drama to be over. Without disagreeing with the conventional wisdom about the final tally when all the legal votes are counted, I believe the current consensus is missing the fact that Trump has a second, viable stealthy road to victory. I’m reluctantly betting that the debate about who won will continue until at least January 6 when slates of electoral college members are opened in Washington, and most likely beyond that as whatever is decided then is appealed by the loser to the Supreme Court. My conclusion reflects the analysis of my colleague in the Applied History Network at the Belfer Center which is below.
As he notes, this stealthy road follows in the footsteps of a number of previous contested American elections, especially the 1876 election that pitted Tilden v. Hayes. Then as now, each state must decide on a group of electors to meet with a joint session of Congress on January 6 where the winner of the presidential election is declared. The normal practice in a state where Biden won the popular-vote total would be for state election officials to certify the results and send a slate of electors to Congress. But state legislatures have the constitutional authority to conclude that the popular vote has been corrupted and thus send a competing slate of electors on behalf of their state. The 12th Amendment to the Constitution specifies that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” That means that in the case of disputes about competing electoral slates, the President of the Senate—Vice President Pence—would appear to have the ultimate authority to decide which to accept and which to reject. Pence would choose Trump. Democrats would appeal to the Supreme Court.
Alternatively, if at that point, no candidate has the required 270 electoral votes, the 12th Amendment stipulates, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” Currently, Republicans have a state delegation majority with 26 of the 50 states and they appear almost certain to keep that majority in the new Congress. A vote of the states would then elect President Trump for a second term. And again, Democrats would appeal that outcome to the Supreme Court.
As the analysis below notes, these issues are even more complex. But to repeat the bottom line: both the words of the 12th Amendment, and historical precedent offer a credible, stealthy, winding road that could lead to Trump’s victory and a second term. Or as the saying goes: the opera ain’t over till the fat lady sings.
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A Contested Election Structurally Favors Republicans in 2020.
I project a 20% chance of a contested election outcome leading to a victory for President Trump.
Whereas consensus sees contestation via Constitutional means as a far, remote possibility, a scenario invoking the 12th amendment is an easier path for Republicans to pursue than currently recognized.
Trump has consistently during his reelection campaign questioned the legitimacy of mail-in ballots, claiming the election will be “rigged” and “the most corrupt election in the history of our country.” This is most likely part of a strategy to set the stage for a contested outcome.
- On Nov. 1 in North Carolina, President Trump decried recent Supreme Court rulings allowing states such as Pennsylvania to continue counting ballots after election day, stating, “We’re going to go in the night of, as soon as that election’s over, we’re going in with our lawyers.”
Most significant, President Trump has clearly discussed and been briefed on a strategy to contest the election via Constitutional means, saying at a Sept. 26 rally in—where else—Pennsylvania: “And I don’t want to end up in the Supreme Court and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress — does everyone understand that? I think it’s 26 to 22 or something because it’s counted one vote per state, so we actually have an advantage. Oh, they’re going to be thrilled to hear that.”
Politico reports, “In private, Trump has discussed the possibility of the presidential race being thrown into the House as well, raising the issue with GOP lawmakers, according to Republican sources.”
Trump is correct: Republicans currently have 26-state delegation majority to Democrats’ 22 state delegations in a scenario in which the election is decided by a House of Representatives vote on the presidency according to state delegations.
Contested outcome scenario built upon a dispute Pennsylvania result.
A conceivable contested election could involve multiple states’ electoral votes, but Pennsylvania’s 20 electoral votes would almost certainly figure into such a scenario.
1876 precedent: Coincidentally, in the contested election of 1876 between Democrat Samuel J. Tilden and Republican Rutherford B. Hayes —the best precedent available for a possible contested 2020 election (not the 2000 election)—20 electoral votes were under dispute, albeit from four different states: all electors from Florida, Louisiana, and South Carolina, and one elector from Oregon.
House of Representatives Office of the Historian: “Both Tilden and Hayes electors submitted votes from these three states, each claiming victory in violent and confused elections. The Democratic-controlled House and the Republican-dominated Senate came to a compromise on how to resolve the problem by creating an Electoral Commission: a bipartisan committee of House Members, Senators, and Supreme Court Justices who would determine the final disposition of the yet-unassigned electoral votes…[Beginning on Feb. 1, 1877], Congress met in a Joint Session 15 times in the next month, until—acting on the decision of the commission—it awarded the disputed vote to Hayes, granting him the victory by one vote.”
The resolution was decided via a backroom deal in which the Republicans agreed with Democrats to end Reconstruction in return for winning the presidency.
In a contested 2020 election, Pennsylvania’s Democratic governor and Republican state legislature could send competing electors to be counted at the Jan. 6, 2021 joint session of Congress.
Similar to 1876, the Republican Senate and Democratic House would disagree on which electors to accept. However, in the media environment of 2020, it would be virtually impossible for the two houses of Congress to reach a backroom deal to resolve their dispute as happened in 1876.
Democrats would argue that the Electoral Count Act of 1877—passed in order to avoid a repeat of 1876—favors the electors certified by state governors; in this case, the Democratic governor of Pennsylvania certifying electors voting for Biden.
Republicans, on the other hand, would argue that the Electoral Count Act is unconstitutional, as the Constitution clearly allows state legislatures to certify electors; in this case, the Republican state legislature of Pennsylvania certifying electors voting for Trump.
Under the Constitution, there exists no mechanism to resolve a dispute in which the two houses of Congress cannot agree upon a certified set of electors, and there is no Constitutional role for the courts, including the Supreme Court.
Republicans, supported by legal and historical precedent, would argue that under the language of the 12th amendment, which reads, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the President of the Senate—Vice President Mike Pence—has the sole discretion to break a deadlock between the Senate and the House, and to either accept or dismiss disputed electors.
As Edward B. Foley explains, in such a scenario, “Some Republicans take the especially aggressive position that Mike Pence, as President of the Senate, has the unilateral authority under the Twelfth Amendment to decide which certificate of electoral votes from Pennsylvania is the authoritative one entitled to be counted in Congress and that he, accordingly, will count the certificate from the electors appointed by the state legislature because the Constitution authorizes the state legislature to choose the method of appointing electors. These Republicans point to the historical pedigree of this position, observing that Republicans made the same argument during the disputed election of 1876 and that at least some recent law journal scholarship has supported this position. Unembarrassed by the apparent conflict of interest caused by Mike Pence simultaneously being a candidate for reelection and arbiter of the electoral dispute, these Republicans observe that Thomas Jefferson was in essentially the same position during the disputed election of 1800 and yet the Twelfth Amendment left this provision in place when Congress rewrote the procedures for the Electoral College afterwards. While it is true that an incumbent Vice President might have a direct personal stake in the electoral dispute to be resolved, the Republicans argue, at least the glare of the spotlight is focused on whatever the vice president does in this situation, and everyone will be able to judge whether the vice president acted honorably or dishonorably in resolving the dispute.”
“This interpretation of the Twelfth Amendment is bolstered, moreover, by the further observation that the responsibility to definitively decide which electoral votes from each state are entitled to be counted must be lodged ultimately in some singular authority of the federal government. If one body could decide the question one way, while another body could reach the opposite conclusion, then there inevitably is a stalemate unless and until a single authority is identified with the power to settle the matter once and for all. Given the language of the Twelfth Amendment, whatever its ambiguity and potential policy objections, there is no other possible single authority to identify for this purpose besides the President of the Senate. This role could have been vested in the chief justice of the United States, as is the constitutional authority to preside over the trial of an impeachment of the president. Or disputes of this nature could have been referred directly to the Supreme Court, as a singular corporate body, for definitive resolution there. But the Constitution does neither; nor does it make any other such provision. Thus, according to this argument, the inevitable implication of the Twelfth Amendment’s text is that it vests this ultimate singular authority, for better or worse, in the President of the Senate. Subject only to the joint observational role of the Senate and House of Representatives, the President of the Senate decides authoritatively what ‘certificates’ from the states to ‘open’ and thus what electoral votes are ‘to be counted.’”
Vice President Pence would then either accept the electors submitted by the Pennsylvania Republican legislature voting for Trump, or dismiss them as disputed and not have them counted. In this new, reduced total of electors, a remaining majority still delivers Trump a victory.
If a majority is not reached, then under the 12th amendment, “the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” If Republicans maintain their current 26-state House majority by state delegation, they are thereby able in this scenario to reelect President Trump for a second term.
Speaker of the House Nancy Pelosi could refuse to attend with House Democrats the Jan. 6 joint session of Congress, thereby indefinitely delaying the aforementioned process, and—in a different scenario—assume the presidency as Acting President under the 20th amendment and under the succession statute enacted by Congress. This sets up a battle of dueling inaugurations on Jan. 20, 2021.
For a detailed description of these contested scenarios, see Edward B. Foley, “Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management,” 8/31/19, 51 Loyola University Chicago Law Journal 309 (2019), Ohio State Public Law Working Paper No. 501.
For simplified distillations of a contested outcome favoring Trump, see:
Fareed Zakaria, “Trump could stay in power even if he doesn’t win the election. The Constitution allows it.,” Washington Post, 9/24/20.
Graham Allison, “Trump Might Not Want to Relinquish Power,” The Atlantic, 7/12/2020