Donald Trump is losing it in a big way, and the polls are widening. Still, I say don’t get overconfident. This may yet be close—close enough that Trump can challenge the results in some key states and try to steal it.
And if Trump and the Republicans can get away with it, they can produce some outlandish scenarios. Maybe one in which a minority of House members decides Trump won re-election. Maybe one in which there is no president next Jan. 20. Maybe even one in which Mike Pence just decides, against the will of Congress, that he and Trump won—and there might be nothing anyone can do about it.
The bottom-line question at hand is this: What happens if neither Trump nor Joe Biden gets 270 electoral votes, i.e., an Electoral College majority? Barton Gellman did go into this in his acclaimed Atlantic piece from late September, but it was kind of scrunched in toward the end of a several thousand-word article, so I think it needs further amplification. And I have a couple points to add that Gellman didn’t get to.
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In general, there are two ways that neither candidate could get a majority of electoral votes. The first is straightforward: 269-269 tie. It’s unlikely, but it’s not impossible.
The second way is far more convoluted and worrisome. This involves Trump challenging slates of electors in states where he’s narrowly, or even “narrowly,” behind. Here’s how that might unfold.
As you probably know, the winner is officially declared by the various states’ electors, who will meet this year on Monday, Dec. 14. Electors are popularly elected. But there’s nothing that says they have to be. And once chosen, they’ve never really been challenged. And there’s nothing that says that has to be, either.
So what Trump would do here is challenge the slates of electors in states where he’s narrowly behind and the GOP controls the state legislature or the governor’s mansion or both. The holy-shit moment in the Barton Gellman article was that he got the chairman of the state Republican Party of Pennsylvania, where the GOP controls both houses of the state legislature (owing in part to indefensible gerrymandering), to tell him on the record that he had discussed this scenario with Trump team officials. “I’ve mentioned it to them, and I hope they’re thinking about it too,” said Lawrence Tabas.
So imagine this hypothetical. Pennsylvania somehow ends up being close enough, with Biden winning, that Trump can lodge his usual baseless allegations of massive fraud and call the result into question, at least for his supporters. His campaign challenges the right of the electors to go to that Dec. 14 meeting and affirm that Biden is the president. The state legislature puts forward an alternate slate of pro-Trump electors.
Let’s say in this case that with Pennsylvania’s 20 electoral votes, Biden won 285 to 253. But with the tally thus challenged, the Pennsylvania votes are taken off the board. That takes Biden down to 265—still ahead, but short of 270. So Dec. 14 comes and goes, and it’s not settled.
Then, next Jan. 6, the electoral votes will be officially recorded by the new House of Representatives, in a session presided over by the president of the Senate, who happens to be Vice President Mike Pence. You may have watched this ritual on TV. Usually, it’s ceremonial. Next January, it could be a fight over the life or death of democracy.
The roll call of state electors starts at Alaska and goes through every state. But if some electors are challenged, and they can’t agree on what to count, what happens then?
After the totally corrupt resolution of the 1876 election, Congress figured it had better get around to writing a law laying out exactly how things would work the next time an election got tossed their way. The result was the Electoral Count Act of 1887. It is supposed to govern how these kinds of contested elections are decided.
One key question is that of the denominator. That is, when Pennsylvania’s electoral votes are challenged, is Pennsylvania still assumed to be part of the final tally, in which case the Electoral College total remains at 538? Or are the 20 votes taken out of the equation, in which case the Electoral College is effectively reduced to 518, making 260, not 270, a winning majority? That is, does the denominator in determining whether anyone got a majority stay at 538 or drop to the number excluding states where there are challenges?
It’s one of the important questions that the 1887 Act was supposed to settle—and utterly failed to, according to Edward Foley, professor at the Ohio State University School of Law and the country’s top expert on all this. “You have to make a choice about the denominator, the mathematical calculation, and there are just two different points of view on this,” Foley told me recently. “The Constitution has never been amended to clarify it one way or the other. When they were writing the Electoral Count Act of 1887, the lead sponsors couldn't agree, so they essentially punted on the issue and just didn't address it.”
The two schools of thought, boiled down, are these. The first theory argues that the state tried. “Pennsylvania did attempt to appoint electors,” Foley said. “They didn’t just sit the election out.” The second theory holds that if electors are challenged and a state can’t decide, then “the appointment process was so defective that it is the functional equivalent of never having had appointed electors in the first place,” as Foley put it.
There is no case law on this, Foley says, so people can argue anything they want. So, on Jan. 6, with electoral votes being officially tallied in the House as Pence presides, there could be a huge fight over the denominator. Let’s say lowering the denominator means Biden will win a majority. That will be the position of the House under Nancy Pelosi, assuming the Democrats keep their majority. The Senate plays no direct role here; it chooses the vice president only. But imagine that the Democrats have captured the Senate, so that Democratic majorities sit in both houses. House Democrats argue for the denominator that will help Biden—and there are 40-odd more Democrats in the House than Republicans. The Senate makes Kamala Harris vice president. And remember, Biden likely got several million more votes than Trump to begin with. The Democrats, with majorities in both houses and backing the candidate who got the majority of the votes, would seem to have the clear upper hand.
But under one school of thought about that 1887 act, Pence can just step in and say no, you’re wrong, the proper denominator is in fact this one—the one that makes Trump, and Pence, the winner. So Pence could, because the Constitution makes the vice president the president of the Senate, in effect hand himself the vice presidency. Think he wouldn’t do it?
The Democrats would challenge that, and then we’d see what the Supreme Court would say. Meanwhile, the clock is ticking. Foley thinks it’s not completely out of the question, and with Trump nothing ever is, that we could hit noon on Jan. 20—when the Constitution says the new president must be sworn in—with no clear winner “and the risk that two people are going to claim the nuclear codes at 12 o’clock.”
If that process ends in deadlock, the House then votes. But this is yet another possible nightmare, maybe the worst of all.
Under the 12th Amendment, the members don’t each have a vote. They vote by state delegation—yep, Wyoming has the same voting power as California; Liz Cheney will have the same voting power as 53 California representatives. So the only thing that matters is which party holds the majority in the most state delegations. Right now, that’s the Republicans, 26-22. Two—Michigan and, yes, Pennsylvania—are deadlocked, 7-7 and 9-9, respectively. And the District of Columbia, even though it has three Electoral College votes in November, doesn’t count here, because it has no voting power in the House.
It is vitally important, in other words, that on Nov. 3, the Democrats flip the GOP’s advantage in terms of majorities within state delegations. There are people who are thinking hard about this. From a source on Capitol Hill, I obtained a list of 20 races that are considered the key ones along these lines.
Here’s the list. Where it has a Rep. in front of the person’s name, the person is an incumbent; no Rep. means a challenger—meaning, that is, that some of the seats below have to be defended against serious GOP challenges, while others are good opportunities for a key Democratic pickup.
1. PA-1: Christina Finello, running against GOP Rep. Brian Fitzpatrick in a state that’s currently deadlocked 9-9.
2. PA-7: Rep. Susan Wild, defending a critical swing district.
3. PA-8: Rep. Matt Cartwright, first-termer defending a Republican-leaning district.
4. PA-10: Eugene DePasquale, running hard against Rep. Scott Perry; may be the single most likely pickup seat in PA.
5. MI-3: Hillary Scholten, running in open seat vacated by Rep. Justin Amash. Michigan’s delegation is deadlocked 7-7 (that counts Amash as a Republican, which isn’t quite right, but the point is that Democrats need to pick up at least one seat in the state to cast their state’s one vote for Biden).
6. MI-6: Jon Hoadley, running against Rep. Fred Upton.
7. MI-8: Rep. Elissa Slotkin, won a usually Republican seat in 2018.
8. MI-11: Rep. Haley Stevens, another first-termer from an R-leaning seat.
9. FL-15: Alan Cohn, running against Scott Franklin, who beat the GOP incumbent in the primary. It’s an R+6 district. The Florida delegation is 14-13 Republican, so one pickup would mean that Florida would be a Biden state if the House votes.
10. FL-16: Margaret Good, running against GOP Rep. Vern Buchanan.
11. FL-18: Pam Keith, running against GOP Rep. Brian Mast.
12. FL-26: Rep. Debbie Mucarsel-Powell, first-termer defending her seat in a swing district.
13. FL-27: Rep. Donna Shalala, facing a challenge from a Latina newscaster and TV personality.
14. IA-1: Rep. Abby Finkenauer, one of three first-term Iowa Democrats, all women, and all fighting off millions in GOP attack ads.
15. IA-2: Rita Hart, running in an open seat.
16. IA-3: Rep. Cindy Axne, first-termer also facing big GOP onslaught.
17. AK-At Large: Alyse Galvin, running very competitively against Rep. Don Young, senior-most Republican in the House and right-wing dinosaur. She can turn Alaska blue in the House single-handedly by beating him, meaning that in a House vote, Alaska would be for Biden.
18. MT-At Large: Kathleen Williams, running in an open district for Montana’s lone House seat. She can single-handedly turn Montana blue in the House.
19. NH-1: Rep. Chris Pappas. If he loses, New Hampshire becomes a tied state.
20. ME-2: Jared Golden. If he loses, Maine shifts from 2-0 Democratic to deadlocked.
If you’re looking to throw some contributions somewhere, you could do a lot worse than to choose one of these 20. Small contributions can go a long way in a House race, especially in a smaller media market. And come next January, you may be glad some of these people are there.
