Donald Trump's Stealthy Road to Victory
- 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.
