The combustible ingredients are in place for a ballot apocalypse during the 2020 presidential election. More than 200 election lawsuits have been filed by partisans. Big tech is openly lamenting whether to censor election night declarations by campaigns. State and local election administrators are warning that they may be overwhelmed by an unprecedented volume of absentee and mailing ballots. Liberal groups are conducting tabletop exercises gaming out hypothetical constitutional crises where the military is called in to help settle the election.
Against this backdrop, both campaigns are assembling legions of lawyers to press their cases on Election Day, during the ballot count and potential recounts and election contests. The Biden campaign has announced a national team that includes two former solicitors general, a former U.S. attorney general and a national law firm with experience in many recounts. The Trump campaign has hired a law firm with multiple former U.S. Supreme Court law clerks to counter them.
The U.S. Constitution and federal law contemplate that these ballot battles will take place between Nov. 4 and Dec. 14, the date the electors are scheduled to meet in several states to cast their ballots for president and vice president. If a battle in a state is resolved by Dec. 8, federal law presumes that the results will be considered “conclusive,” although it is not clear what weight will be given to this presumption. If a state has not resolved its ballot battle by Dec. 23, the president of the Senate will request the required electoral college certificates from the state that has not submitted the documents.
The new Congress will be sworn in between Jan. 3 and Jan. 6. Afterward, a joint session of Congress will be held on Jan. 6, beginning at 1 p.m., to count the Electoral College results from several states. Vice President Mike PenceMichael (Mike) Richard PenceTrump refuses to disavow QAnon Biden leads Trump by double digits: poll McConnell: GOP has the votes to confirm Barrett to Supreme Court this month MORE will preside over the session as president of the Senate. Two tellers from the House and the Senate will be appointed to tally and declare the Electoral College results from each state. Each state’s results will be announced in alphabetical order by the tellers.
As each state’s electoral votes are announced, objections can be made to the votes. For an objection to be in order, it must be in writing, state the grounds for the objection, and must be signed by a member of the House and one senator. If the objection is in order, the Senate president will declare the session in recess to consider the objection, and each chamber will meet separately to debate and vote on the objection. An objection must be upheld by both chambers to exclude the state’s electoral votes. If it is upheld by only one chamber, the objection fails and votes are tallied and accepted.
Since the 2000 presidential election, House Democrats consistently have raised objections to the electoral votes from various states when a Republican is elected president. During the 2001 joint sessions in which the Electoral College votes were tallied and declared, House Democrats objected to the votes from Florida, but the objection was gaveled down because no U.S. senator signed on to the objection. In 2017, House Democrats objected to the electoral votes from 11 states, but the objections were gaveled down for the same reason. In 2005, then-Sen. Barbara Boxer (D-Calif.) signed a House Democratic objection to the electoral votes from Ohio and the session was declared in recess while each chamber separately debated and voted on the objection.
If Democrats take control of the Senate after November’s election and retain control of the House, and President TrumpDonald John TrumpFeds investigating if alleged Hunter Biden emails connected to foreign intelligence operation: report Six takeaways from Trump and Biden’s dueling town halls Biden draws sharp contrast with Trump in low-key town hall MORE receives 270 electoral votes, there is a possibility that Democrats will object to electoral votes to deny him a second term. After all, House Democrats impeached President Trump in 2019 and Senate Democrats voted to remove him during the Senate trial this year. Conservatives will view objecting to the electoral votes from states that President Trump wins, to deny him the 270 electoral votes needed, as a soft impeachment play to prevent a second term.
If no presidential candidate receives 270 or more electoral votes, the 12th Amendment requires that the House immediately conduct a contingent election to choose the president. The vote in the House would take place by state, with each state entitled to cast one vote. This means that a populous state such as California is entitled to cast a single vote in the same manner as Montana. A quorum for these proceedings is two-thirds, meaning a member or members from 34 states must be present. A presidential candidate must receive a majority vote from 26 states to be declared president. Although the District of Columbia is entitled to participate in the Electoral College, the contingent election is limited to the states, which means the District would not be entitled to cast a vote. The contingent election for vice president would be held in the Senate with the same two-thirds quorum requirement and each senator entitled to cast one vote.
Currently, Republicans hold majorities in 26 states’ congressional delegations, and Democrats hold majorities in 23 states. Pennsylvania’s congressional delegation is currently tied with nine Republicans and nine Democrats. This means that the presidential campaigns will need to begin monitoring congressional elections where the delegations are closely divided along partisan lines.
If the House is forced to hold a contingent election, the political cross-currents facing each representative will be intense. Each would face calls to vote according to the presidential vote totals from his or her congressional district, while other forces would claim that the entire delegation must vote with the statewide vote.
All of this means that your vote for representative could decide control of the House and who will be our president if there is a contingent election. In other words, 26 state congressional delegations could be the new 270 Electoral College votes in this presidential election. It is 2020, after all.
William J. McGinley, a partner at Holtzman Vogel Josefiak Torchinsky PLLC, served as White House Cabinet secretary for the first 31 months of the Trump administration. He previously was general counsel to the National Republican Senatorial Committee, deputy counsel at the Republican National Committee, and outside counsel to the National Republican Congressional Committee. Follow him on Twitter @WJMcGinley.