by David W. Tollen and guest contributor Robert W. Tollen

Many commentators assume the new House of Representatives would choose the President after a challenged election — with each state’s delegation casting a single vote. Others say the Supreme Court would decide. Each scenario gives Republicans an advantage, since they’ll probably control more state delegations, despite their overall minority in the House, and they appointed most of the Justices. But in fact, neither scenario is likely, and the commentators focused on them misunderstand the law. State governments resolve disputes about their voters’ presidential electors, under state law. And the new Congress rules on challenges to those decisions in the normal way, with each house voting by simple majority.

The Unlikely Case of a Tie or Plurality in the Electoral College

When does the House of Representatives choose the President, voting by state? Only when no candidate gets a majority of the electors, per the rules in the Twelfth Amendment.

In 1824, the House chose the President because, with three major candidates, no one had earned a majority of electors. That had never happened and hasn’t since.

With an even number of electors, 538, a tie is always possible — and always unlikely. The odds don’t favor a plurality either: the other way for the vote to produce no majority. The electors could produce a plurality if they divided their votes among three or more candidates, but that’s close to impossible with no third party candidate.

A State that Doesn’t Choose Electors?

What if a state fails to appoint electors, thanks to a dispute? Would that mean no majority, so the House decides, voting by state? No. The Twelfth Amendment gives the presidency to “the person having the greatest number of votes” by the electors, “if such number be a majority of the whole number of electors appointed” (emphasis added). So the winning candidate doesn’t need a majority of theoretical electors but rather a majority of those actually “appointed.” If a state fails to appoint electors, the magic majority number goes down. Someone still gets a majority in a two-candidate race, unless there’s a tie.

No state has ever failed to appoint electors. State politicians have a huge incentive to settle any dispute by the deadline set by federal law: December 8 this year. No one wants to throw away the entire state’s vote. And if the deadline looms with no resolution, the governor can certify the winning slate.

Battles in the States and Decision by Both Houses of Congress

Louisiana’s 1876 certificate for the electoral vote (for Rutherford B. Hayes)

The battle, then, rages in the states. In each state, each presidential candidate will have a slate of electors pledged to vote for him. In a dispute about which slate won, each candidate tries to sway the state’s election commission or its courts or whoever else has authority under state law.

What if that state decision-maker chooses wrong — violates state law? It’s not over. The governor notifies Congress of the winning slate of electors and of their votes for President. The new Congress takes office on January 3 (seventeen days before the President), and it counts the electors’ votes on January 6. At that point, Congress rules on any objection to the state government’s slate of electors: any claim that the other slate won. The two houses of Congress can overrule the governor’s certification if they agree, voting by simple majority. So if a party has the majority in both houses, its members of Congress can overrule the state governor. If the two houses don’t agree to overrule the governor, his or her certification stands.

The Federal Courts’ Role or Lack Thereof

When does the Supreme Court get involved? The likely answer is never.

Nothing is impossible, but it’s hard to imagine the federal courts weighing in on Congress’ decisions about presidential electors. Federal courts don’t judge “political questions.” In other words, as the Supreme Court said in a 1962 decision, federal courts must refuse cases involving a “constitutional commitment of the issue to a coordinate political department”—to Congress, in this case. (Baker v. Carr, 369 U.S. 186.) It’s hard to imagine a more obvious political question than Congress’ decision about the election of the President.

Could the federal courts dive into a state-level battle about the choice of electors? In general, the answer is no. State law governs those battles. Federal courts can’t get involved unless the state’s process somehow violates federal law, which has little to say about elector disputes.

Didn’t the Supreme Court get involved in Bush v. Gore?

Demonstrations in front of the Supreme Court, Bush v. Gore, 2000.

In 2000, the U.S. Supreme Court did dive into an elector battle, in Florida. In the Bush/Gore election, the Florida supreme court ordered a recount in one county, overruling the state election commission’s ruling in favor of George W. Bush. Then, the U.S. Supreme Court reversed the Florida court. The national Supreme Court didn’t try to interpret Florida law, but it did hold that the planned recount process was so erratic that it violated the U.S. Constitution’s guarantee of equal treatment for all citizens. The Supreme Court also ruled that too little time remained before the deadline to set up a new recount. So the Court reinstated the state commission’s ruling. (Bush v. Gore, 531 U.S. 98.)

In other words, the U.S. Supreme Court did not choose a winner in Bush v. Gore. It let Florida’s government decide disputes about counting Florida voters. It just overruled a choice by Florida’s court that (allegedly) violated equal protection under the U.S. Constitution.

Once burned, twice shy. No state is likely to set up a dispute process that misses the deadline. And while a state might adopt an unconstitutional procedure for resolving elector disputes, the federal courts should limit themselves to refusing that procedure, leaving the state to pick another. The federal courts cannot choose the President or even the state’s electors. Plus, the Supreme Court took heavy fire for its decision in 2000. So today’s justices may bend over backward to avoid any role in choosing the President.

The End-Game and the Speaker

States, then, resolve their own disputes about presidential electors. The new Congress resolves almost any remaining dispute, voting by simple majority. But if the two houses can’t agree, the slate certified by the state’s governor gets to vote.

Of course, we can’t predict all contingencies, and neither can the law. So the process could still break down. But that’s less likely than many suppose. And the Constitution leaves no doubt about what happens if the system produces no winner by inauguration day, January 20. Under the Twentieth Amendment, the Speaker of the House serves as acting President. Nancy Pelosi (presumably) would lead the nation until Congress resolves the dispute.

Guest contributor Robert W. Tollen is a retired attorney. He practiced for forty-five years, primarily in labor and employment, and he has degrees from the University of Pennsylvania. He is also David Tollen’s father.

Images:

• The House of Representatives, 1822, probably reworked 1823, by Samuel F. B. Morse
• Louisiana’s 1876 certificate of the electoral vote.
• 2000 Presidential election recount, by David from Washington D.C., provided by Wikimedia Commons under the Creative Commons Attribution 2.0 Generic license.

© 2020 by David W. Tollen