A triple-tie that results in President Pelosi on Jan 20 is not impossible -- plus cancelling elections

Submitted by brad on Wed, 2020-03-18 13:20
Topic: 
Politics
Of course, sometimes a tie is resolved in the courts, not congress

It is possible if, among the swing states, Trump wins Florida, Pennsylvania, North Carolina and the Nebraska 2nd (Omaha), while Biden wins Michigan, Arizona and Wisconsin. This is not one of the most likely scenarios, because Arizona and Wisconsin are currently more on Trump's side than Biden's, but it's possible.

This would result in a tie, or rather, no candidate getting a majority. That means the newly elected 117th House picks between them, and the Senate picks the VP, in what is called a Contingent Election.

The House votes by state, not by member. 26 state delegations are needed to win. Right now Republicans control 26 house delegations, and 2 are tied, and 22 are Democratic. That House would elect Trump. But if any weakly red delegation such as Florida or Wisconsin were to flip blue in the new congress, the house would deadlock.

It doesn't say in the constitution how a state decides its vote -- the decision is to be made immediately, though. One presumes the members of the state delegation themselves hold a sub vote -- more on that below.

If there is a deadlock, the new VP becomes acting President until the House comes to a decision. Who is the new VP? Well, that's chosen by the Senate, so today, it would be Pence. But it's not entirely out of the question that the Democrats could pick up 3 Senate seats, and there would be a tie there too! Without 51 Senate votes, there would be no VP -- no specific process is specified for how to select one in this tie.

The 20th amendment then says that "Congress" can set rules for how to choose a President if there's no VP. I haven't found a lot of details on that, particularly on how a deadlocked congress would do that.

One article I read suggested the order of succession would be used, resulting in President Pelosi. It is quite unclear who would become VP. Next in line is the President Pro Tempore of the Senate, who would not exist with the deadlock either. After that you get cabinet members like the Secretary of State, though a new one could not be confirmed by a tied Senate with no VP.

Another odd option opens if the lack of majority comes from a 3rd party candidate gets any electoral votes. Then than 3rd place spoiler could be a compromise candidate for a deadlocked congress to choose. I wrote in 2016 how that could have happened to Evan McMullin.

As I said, it's not written down where I could find it that the states decide their vote by a vote of members. It's not written down what the evenly split delegations do (probably abstain.) It's also possible that a house member might break from party. What if your district went heavily for Biden, and your vote made the difference in electing Trump?

Now, all of this is unlikely for another reason. The pattern of states to get a tie in the college is not an expected one, since it has Trump win the slightly more blue swing states while Biden wins the slightly more red ones. It also needs enough of a "blue wave" to flip the house delegation of a red state, and for the Democrats to gain 3 Senators. Though without that gain, Pence is VP and then acting President, which Democrats could consider an improvement.

It's also possible that the Republicans could have a majority of states in the House as they do now, but the Democrats somehow got 51 Senators. This would result in President Trump and the Democrat VP. Also remotely possible is the Democrat VP becoming President with a deadlocked house and a Democratic Senate.

So it's not going to happen. But it's amusing to imagine.

Cancelled elections

There has been some suggestion of elections being cancelled in some states due to the virus. Ohio already delayed its primary.

This also is unlikely, since every state currently has some form of vote by mail. 2/3rds let anybody do it. 1/3rd need an excuse, but obviously there is an excuse.

In fact, the important swing states -- AZ, WI, MI, PA, NC and FL as well as OH, have republican controlled legislatures, but all but Florida, Arizona and Ohio have Democratic governors. Biden has to win 38 votes from those states, and if any get taken out, it could hurt him. It could also hurt Trump, but again, he probably wins the contingent election.

The "good" news? If Sars-COV2 is that bad in November, and the stock market is down with it, the election is probably not so close that this can make a difference. It will be Biden's to walk away with.

Share on:
  • Reddit logo
  • Facebook logo
  • Twitter logo
  • LinkedIn logo

Comments

Fat Bob

Wed, 2020-03-18 14:33

You don’t want to get into what might happen if one or both of the presidential candidates die at various points during this process?

brad

Wed, 2020-03-18 14:44

People think about that more, but there are probably a few chaotic points. After the election it's worked out -- President-elect dies, VP is elected. Just before the election, or after the deadline to get people on ballots I can see some trouble zones, though I suspect they would pass emergency rules to stop them. Or so I hope.

FKA

Thu, 2020-03-19 11:15

After the general election but before the electoral college meets is another one.

I'm not sure what the emergency rules would be other than the obvious. The people vote for electors, not for the names on the ballots. It's up to the electors to choose who to vote for. (In practice the replacement would likely be chosen by the DNC/RNC and the electors expected to follow those "recommendations." Hillary Clinton as President is still a possibility.)

After the electoral college meets and selects a P and VP (or the House does so), if the President-elect is not alive on January 20, the Vice-President-elect becomes President, and the Vice President position is vacant until a new VP is nominated by the President and confirmed by both houses of Congress (25th Amendment, Section 2). There is no automatic line of succession for VP. The VP spot remains vacant until the next election, or until confirmation under the 25th Amendment.

FKA

Thu, 2020-03-19 05:24

The 12th Amendment was used not too long after ratification in the 1824 election. According to the text of the amendment the states don't vote, the House votes, and in fact in 1825 the House delegation from Kentucky ignored the directive of its legislature. There weren't any delegations that evenly split in 1825. Presumably the delegation would be expected to work that out within itself. If there was an unresolvable dispute within the delegation and the delegation tried to vote twice I believe the House would determine the rules: someone would raise a point of order; the Speaker would make a ruling; the House as a whole could vote to overrule the ruling of the Speaker.

The 20th Amendment says that "Congress may provide by law" for the situation where no P or VP has qualified. They have already done so: 3 USC 19. They could change that law (with the signature of the President or by overriding his veto), but presumably they'd have to change it before the vacancy occurs; whatever provision is in effect at noon on January 20 would control.

While the states can cancel the election for presidential electors, under the 17th Amendment they can't cancel the election for senators. So those states that are holding an election for a Senate seat (which includes Minnesota) can't cancel the election completely (even if Congress wanted to let them; it's a constitutional requirement that senators are chosen by the people). Likewise, states can't choose House seats by any way other than a vote by the people (Article I, Section 2), so in any district where a House seat is up for election the election can't be cancelled completely (and if you have a vote for President in some parts of the state you have to have it in all parts of the state). If a state cancels the election for presidential electors they can still send electors to the college. Minnesota could cancel the election for president and the legislature could vote to send all republican electors to the college. "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." Article II, § 1, cl. 2. This can be done regardless of any emergency situation. The state legislatures choose the presidential elections. All states currently choose to hold elections for presidential electors, but they don't have to, and Congress cannot pass a law (other than a constitutional amendment, which would have to be ratified by the states) requiring them to.

brad

Thu, 2020-03-19 12:14

Does not specify how a VP is chosen, which means that the President has to appoint one and get the consent of a majority of both houses -- something that, presumably is not coming in the event of a senate tie. But with no VP the tied Senate can be deadlocked. One would hope they would come to a compromise.

Did you find any rule that says how a delegation decides on its single vote? I mean, we presume it's by having a vote within the delegation, but does it say that anywhere? Does it say what the delegation does if it is deadlocked, or if there is a quorum rule for such a vote or any things of that sort? Since the vote must take place immediately, they obviously didn't intend for orders to come from the state legislature or governor, though does it say that anywhere? When they wrote the rules, immediate communication did not exist.

FKA

Fri, 2020-03-20 06:14

You are correct that 3 USC 19 does not specify how a VP is chosen. A vacancy in the VP spot is filled as provided by the 25th Amendment, Section 2. "Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." Maybe the vacancy would remain for four years, until the next election, if Congress and the President couldn't work together. I don't see any major problem with the VP spot being vacant for a long period of time. One side or the other might be willing to compromise, though. Probably the party that controls the Speaker of the House (or whoever is next in line if the Speaker is ineligible to become President) would get the better end of such a compromise. But the incoming President would almost surely first nominate his or her first pick upon taking office, and then hem and haw at Congress for not confirming that pick for a while. People in the party of the incoming President would whine that Congress is being obstructionist. They'd say that politics should not play a role in confirmation, and the nominee should be confirmed so long as s/he was qualified for the position. Which side they were on in previous confirmation hearings would be irrelevant. Maybe the standoff would last for four years. I could see it happening, given recent history.

(Personally, I think that of course politics should play a role in confirmation hearings. Presidents should nominate compromise candidates if they don't share the same political party as the confirming body. I've held that position through Democrat presidents as well as Republican ones.)

In 1825 each delegation decided on its single vote by voting. Given how soon after the ratification of the 12th Amendment this was, there's strong evidence that that was the intention, and I think the plain reading of the amendment suggests that that's what they're supposed to do. Furthermore, in 1825 the state legislature of Kentucky tried to tell its delegation how to vote, and they ignored them. I think the plain reading of the amendment is even more clear that state legislatures have no say in the matter. There wasn't a tie, so it's less clear what would happen in that case. Presumably the delegation would have to figure it out (someone would have to give in), or they wouldn't be able to cast a vote.

Ultimately though, how it would work is however the House wants it to work (at least so long as they are arguably following the Constitution; while SCOTUS could step in I don't think they would unless the House was blatantly violating the Constitution). "Each House may determine the Rules of its Proceedings..." Article 1, section 5, clause 2. Similarly to how the recent impeachment and impeachment trial went. The House leadership would make the rules. The House would vote on the rules. Anyone could raise a point of order to try to change the rules, but the Speaker would rule on it and it'd take a majority to overrule the Speaker. Again, SCOTUS would be wary to step in unless the House was blatantly violating the Constitution. If the House did so, it'd cause a Constitutional crisis.

brad

Fri, 2020-03-20 14:31

My speculation is that in a tied house delegation like PA, it would probably deadlock and not vote. It still requires that 26 delegations vote for the new President. If neither side had 26 delegations than the tied delegations, if any, would be a fun fight.

FKA

Fri, 2020-03-20 19:12

I agree that a deadlock and no-vote is most likely in today’s hyperpartisan environment.

Especially given that the Senate will likely be majority Republican and the Republican candidate for President is worse than the Republican candidate for Vice President (so a deadlock is better than a Republican win).

Anonymous

Thu, 2020-03-19 10:01

Minnesota does NOT have a "GOP controlled legislature." The Democrats have a pretty large majority rule in the MN House of Representatives, and the Republicans have a very slim majority in the MN Senate. And a very Dem. Governor.

Why do people write about things (and "facts") that they don't know much about?

brad

Thu, 2020-03-19 12:05

No need to get snarky. I pulled up a chart of which legislatures were under which party's control, and it showed MN as red, which is in error, and I will correct that.

Add new comment