Donald Brand, College of the Holy Cross
If the the 2020 U.S. presidential election is contested, both campaigns are preparing to take the matter to court. But the Founding Fathers meant for Congress to be the backup plan if the Electoral College did not produce a winner.
Generally, the framers sought to avoid congressional involvement in presidential elections. They wanted an independent executive who could resist ill-considered legislation and would not care about currying favor with members of Congress, as James Ceaser explained in his definitive 1980 text, “Presidential Selection.”
That’s why they created the Electoral College, assigning to state legislatures the responsibility for choosing “electors” who then determine the president.
But the framers could foresee circumstances – namely, a fragmented race between little-known politicians – where no presidential candidate would secure an Electoral College majority. Reluctantly, they assigned the House of Representatives to step in if that happened – presumably because as the institution closest to the people, it could bestow some democratic legitimacy on a “contingent election.”
Tied or contested election
The founders proved prescient: The elections of 1800 and 1824 did not produce winners in the Electoral College and were decided by the House. Thomas Jefferson was chosen in 1800 and John Quincy Adams in 1824.
Over time, the development of a two-party system with national nominating conventions – which allows parties to broker coalitions and unite behind a single presidential candidate – has basically ensured that the Electoral College produces a winner. Though the Electoral College has changed significantly since the 18th century, it has mostly kept Congress out of presidential selection.
As a professor who has taught courses on presidential elections for two decades, however, I can see scenarios in which Congress gets involved in the 2020 election.
A tie in the Electoral College remains a possibility, however remote. There are 538 electors, so a minimum majority to win is 270. The website 270toWin lists 64 hypothetical scenarios in which both Joe Biden and Donald Trump could get 269 electors. That would throw the election to the House.
Though the House has a Democratic majority, such an outcome would almost certainly benefit Trump.
Here’s why: In a concession to small states concerned their voices would be marginalized if the House was called upon to choose the president, the founders gave only one vote to each state. House delegations from each state meet to decide how to cast their single vote.
That voting procedure gives equal representation to California – population 40 million – and Wyoming, population 600,000.
Currently, this arrangement favors the Republicans. The GOP dominates the delegations from 26 states – exactly the number required to reach a majority under the rules of House presidential selection. But it’s not the current House that would decide a contested 2020 election. It is the newly elected House that would choose the president. So the outcome depends on congressional races.
One more caveat: Split decisions are considered abstentions, so states that cannot reach an agreement would be counted out.
Congressional commission
Another way Congress could become involved in the 2020 election is if there are disputes about the vote totals in various states. Given the spike in mail-in voting during the pandemic, threats of foreign interference and controversies over voter suppression, uncertainty after Nov. 3 seems likely.
Perhaps the most relevant precedent for that scenario is the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That election saw disputed returns in four states – Florida, South Carolina, Louisiana and Oregon – with a total of 20 electoral votes.
Excluding those 20 disputed electors, Tilden had 184 pledged electors of the 185 needed for victory in the Electoral College; Hayes had 165. Tilden was clearly the front-runner – but Hayes would win if all the contested votes went for him.
Because of a post-Civil War rule allowing Congress – read, Northern Republicans worried about Black voter suppression – to dispute the vote count in Southern states and bypass local courts, Congress established a commission to resolve the disputed 1876 returns.
As Michael Holt writes in his examination of the 1876 election, the 15-member commission had five House representatives, five senators and five Supreme Court justices. Fourteen of the commissioners had identifiable partisan leanings: seven Democrats and seven Republicans. The 15th member was a justice known for his impartiality.
Hope of a nonpartisan outcome was dashed when the one impartial commissioner resigned and was replaced by a Republican judge. The commission voted along party lines to give all 20 disputed electors to Hayes.
To prevent the Democratic-dominated Senate from derailing Hayes’ single-vote triumph over Tilden by refusing to confirm its decision, Republicans were forced to make a deal: Abandon Reconstruction, their policy of Black political and economic inclusion in the post-Civil War South. This paved the way for Jim Crow segregation.
Bush v. Gore
The 2000 election offers the only modern precedent for contested vote returns.
George W. Bush and Al Gore argued for a month over Bush’s slim, 327-vote advantage in Florida’s second machine recount. After a lawsuit in state courts, this political and legal battle was decided by the Supreme Court in December 2000, in Bush v. Gore.
But Bush v. Gore was never intended to set a precedent. In it, the justices explicitly stated “our consideration is limited to the present circumstances.” Indeed, the court could have concluded that the issues presented were political, not legal, and declined to hear the case.
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In that case, the House would have decided the 2000 election. The Electoral College must cast its ballots on the first Monday after the second Wednesday in December – this year, Dec. 14. If disputed state vote totals are not resolved by six days prior to that date, Congress can step in, under the 1887 Electoral Account Act. This could have happened in 2000, and it is an imaginable outcome in 2020.
The best bet for American democracy, history shows, is a clear and decisive victory in the Electoral College, as the framers intended.
Donald Brand, Professor, College of the Holy Cross