The upcoming presidential election threatens to be the most tumultuous of our lifetimes. Combine a deeply polarized citizenry, inevitable delays in counting an unprecedented number of mail-in ballots in the midst of a pandemic, a divisive Supreme Court confirmation on the eve of Election Day, and a Covid-infected president predisposed to ignore tradition and employ scorched-earth legal tactics in pursuit of his own self-interest. Add to all that an electoral system that twice in the last twenty years has awarded the presidency to the candidate who failed to win the popular vote, and you have a potent recipe for political — and possibly civil — chaos.
It’s become a media cliché to assume that the vote count will be a drawn-out spectacle of political wrangling, lawsuits, and outright chicanery. But largely unnoticed is the fact that it’s our down-ballot votes for House and Senate seats that could decide the presidency. Here’s how:
Trump will likely not win the national popular vote. He trailed Clinton in 2016 by almost three million votes, and the demographic factors that produced that result are if anything more accentuated today.
Trump’s main – perhaps his only – hope for a second term lies in the Electoral College. If he can string together wins in the right combination of key states, he can again corral the 270 electoral votes needed for victory. And this is of course why a close vote count in any of the swing states is likely to be bitterly contested.
But whatever the local process, the states will be under pressure to complete it by December 8, which is when, under the Electoral Count Act of 1887 (the “ECA”), each state must certify its slate of electors and their electoral votes to the President of the Senate (currently Mike Pence) in order for its “final determination” of the matter to be regarded as “conclusive.”
In states where the legislature and the governor’s office are controlled by one party, there will be intense pressure to resolve a close or contested vote count in favor of that party. In states where the two houses of the legislature are divided between the parties, or where the governor is of one party and the legislature is dominated by the other, the wrangling over a close or contested vote count could even result in competing slates of electors being certified by a given state. This happened in the 1800s, and as recently as the election of 2000, Republican operatives had prepared Jeb Bush to certify his brother’s victory in Florida even as a recount was in progress. Today, in six swing states (including the critical states of Arizona and Florida), Republicans control both houses of the legislature as well as the governor’s office, and in four more, Republicans control both houses of the state legislature.
Assuming the states determine their slates of electors by the statutory deadline, the acceptance and counting of their electoral votes becomes the responsibility of the new Congress that will be formed by the November 3rd election.
This is where the down-ballot becomes crucial. Under the ECA, the new Congress will meet in joint session on January 6 to count the presidential electoral votes, and any disagreements over whether and which states’ electoral slates have been appropriately submitted (“regularly given,” in the unhelpful language of the statute) are supposed to be resolved between the two houses.
If Republicans retain a majority in the Senate in the upcoming election, they will be able to neutralize any moves by the Democrat-dominated House to disqualify a state’s contested electoral votes. But if Democrats win a majority in the Senate – a plausible scenario, given that Republicans are defending 23 seats versus 12 for the Democrats – while maintaining their majority in the House, the newly-unified Congress would have the statutory power to determine which contested electoral votes to accept and which to reject.
And that could decide who gets inaugurated on January 20. Unless, of course, the Supreme Court, staffed with three Trump appointees, is drawn into the fray by lawsuits challenging, among other possible targets, the ECA itself – an antique, poorly-written statute which has never been subjected to constitutional scrutiny.
There’s yet another unsettling scenario: where neither presidential candidate achieves the 270 electoral vote majority. This could happen if rogue, so-called “faithless” electors vote for other than their assigned candidate. But there are also dozens of possible combinations of state outcomes that could result in an Electoral College tie of 269 to 269, such as the not inconceivable case where Trump wins in Minnesota but loses in Arizona, Michigan, and Pennsylvania.
Under the Constitution, such a tie would require what is called a “contingent election,” in which the House of Representatives votes to decide who becomes president. At first blush, given the current Democratic majority in the House, a contingent election would seem to spell political doom for Trump. But the Constitution stipulates that in this situation each state’s delegation gets just one vote, and the winner is the candidate who receives a majority of the delegations’ votes.
In this event, the Democratic majority in the House becomes irrelevant, and the question becomes: which party dominates a majority of the states’ delegations? Currently the answer is that Republicans have a majority in 26 of the 50 states’ delegations to the House. But this too could change on Election Day.
In short, our down-ballot votes were never more critical than they will be this November 3. And when the dust has settled, we can again turn to reforming the Electoral College system that makes all this political mayhem not only possible, but more likely.
The torturous political gauntlet that we face in 2020 is a realization of the all the fears that have made the peculiar institution of the Electoral College the object of anxious reform efforts virtually since the founding of the republic. It exists as one of several voting power subsidies (including the notorious “three-fifths compromise”) ceded by the Founders to the southern slave states, and is unique in western democracies in its insertion of intermediary agents between the voting populace and the selection of the head of state.
In addition to the easily-gamed procedural complexities outlined above, its defects include a particular susceptibility to vote count fraud, since the “winner-take-all” method of awarding electoral votes, employed by virtually all states, allows huge blocs of voting power to turn on a small number of readily contestable votes. It’s no small irony that the risk of vote fraud, proclaimed by Trump to be the reason mail-in ballots should be prohibited, is magnified by the very institution that is his most likely route to retaining the presidency. Of course, irony and Trump are no strangers, as his forewarnings of a “rigged” election in 2016 were based on his anticipation that he could win the popular vote but still lose in that bad, old, unfair Electoral College.
Maybe we’ll get lucky. Maybe the popular vote will be so resoundingly clear that none of the procedural weaknesses of the Electoral College or the ECA can be credibly exploited. But in 2016, Hillary Clinton lost the all of the electoral votes of Pennsylvania, Michigan, and Wisconsin, and consequently the election, by a grand total of around 77,000 popular votes. In 2000, the result came down to 537 votes in Florida. If this uniquely strange election year yields similarly narrow margins, we may witness an electoral vote count in Congress where control of the Senate decides the winner, or a contingent election where state delegations to the House, rather than the people who sent them there, will decide who will be our president for the next four years.
 The Electoral Count Act of 1887, Section 2.
 With quaint optimism, the ECA stipulates that two hours be allocated to each house’s deliberation of the matter. The Electoral Count Act of 1887, Section 6.
 See “Electoral College Tie Finder,” 270 To Win, www.270towin.com.
 This has happened exactly once in our history, in the 1824 contest between John Quincy Adams and Andrew Jackson. Though Jackson won the majority of popular votes and a plurality of electoral votes, neither candidate won a majority of the electoral votes, and the House eventually chose Adams (who had not even won a plurality of the popular vote and was soundly defeated by Jackson four years later).
 Harvard historian Alexander Keyssar has documented literally hundreds of Congressional resolutions introduced since 1800 aimed at either making the College more congruent with the popular vote (e.g., by allocating each state’s electoral votes in proportion with the popular vote or by Congressional district) or eliminating it. See Keyssar, Why Do We Still Have the Electoral College? (2020). The answer to the question posed by his title, succinctly summarized, is that the Electoral College system, and the states’ predominantly “winner-take-all” method of awarding electoral votes, has been perceived over time by each of our two major political parties as favoring its immediate political prospects, with the result that at different times one party or the other has managed to block proposed reforms.
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