In a stunning public admission of a plan to distort our democracy, Donald Trump has been telling his audiences that he will win the 2020 election without winning more votes than Joe Biden. But unlike 2016, Trump’s new plan is not even to win the Electoral College despite losing the popular vote. Instead, he thinks that the U.S. House of Representatives will hand him a second term.
This strategy, however, is based on a misreading of the Constitution. Trump could yet pull off an Electoral College victory, although that is looking increasingly unlikely, but his “throw it into the House strategy” simply will not work.
As undemocratic as the Electoral College is, it is important to emphasize that Trump’s new strategy would represent an even more extreme rejection of the idea of government by the people. If the President were to be selected by the House under the relevant provisions that we describe below, each state—no matter its population—would get exactly one vote. Therefore, if the Republicans manage to maintain their current hold on 26 of the 50 delegations in the House, then the Republican minority in the People’s House could hand Trump a second term—no matter what the people or even the Electoral College says.
Of course, House Speaker Nancy Pelosi and her colleagues are wisely focused on winning the House seats necessary to flip that advantage. But the very idea that Trump’s supposed ace in the hole is to engineer a vote that is completely divorced from majority rule tells us everything that we need to know about Republicans’ willingness to hold onto power through whatever means necessary.
As we explain below, however, even if every other part of Trump’s scheme were to fall into place, the plain meaning of the constitutional text on which Trump relies would not in fact send the election to the House.
Trump’s Plan to Contest Certain States’ Results, Deliberately Creating Chaos
Trump’s Hail Mary plan is based on the Twelfth Amendment to the Constitution, which adjusted the method for selecting the President and Vice President to accommodate political parties but retained the original Constitution’s backup procedure for circumstances in which the Electoral College fails to produce a winner. With Trump’s scheme having been revealed in an article in The Atlantic, he and his legal team are now openly endorsing a strategy to win by defying the voters’ will.
How would the Trump scheme supposedly work? Imagine that, after all the votes are counted, Biden has won 288 electoral votes to Trump’s 250. Game over, right? Not if Trump’s people have their way. They are currently doing everything they can to suppress votes in multiple states, but they are particularly focused on Pennsylvania and its 20 electoral votes, which they understand to be key to their win-while-losing strategy.
If Biden’s 288 Electoral College votes include Pennsylvania’s 20, stripping those votes away from Biden would push him below the 270-vote majority threshold. Republicans are preparing to wipe out the likely choice of the Keystone State’s voters by having the Pennsylvania legislature declare that the state’s vote was fraudulent and then designating a slate of 20 electors to support Trump. In the not-that-farfetched scenario we have described, that would put Trump at exactly 270.
The Electoral Count Act
However, Pennsylvania’s governor is a Democrat who would veto any effort to circumvent existing state election law. Supreme Court precedent makes clear that Republican-dominated legislatures cannot legally bypass their own governors to change the rules governing federal elections, as two of the authors of this column and a colleague recently demonstrated. If Pennsylvania or any other state wants to change its voting laws, it must do so in the normal way, not by having the legislature go rogue. If Biden wins more votes in Pennsylvania, Governor Tom Wolf would certify the Biden electors to the Electoral College.
What if the Republican majority in the Pennsylvania legislature purported to designate the Trump electors anyway? There would then be two competing slates of electors from Pennsylvania: the governor’s slate based on Biden’s popular-vote win in the Keystone State; and the rogue state legislature’s slate based on its unlawful endorsement of Trump’s contrived claims of voter fraud. What then?
A federal statute, the Electoral Count Act, specifies that Congress settles disputes over electors, but that would lead to a stalemate, as the Republican-dominated Senate and the Democratic-dominated House would likely disagree on which Pennsylvania slate to recognize (unless, of course, the Democrats win back control of the Senate in this year’s elections, given that all of this would be determined by the Congress that is sworn in on January 3, 2021). The Electoral Count Act addresses this contingency as well. It says unequivocally that “the votes of the electors whose appointment shall have been certified by the executive of the State” are the ones that count. Thus, a partisan dispute arising out of competing slates of electors from Pennsylvania—or Michigan, Wisconsin, or North Carolina, which also have Democratic governors—would be resolved in favor of the Democratic governor’s choice. Biden wins.
Team Trump cannot be expected to give up, however. Perhaps they would next claim that the Electoral Count Act is unconstitutional in specifying a procedure that has details going beyond what appears in Article II or the Twelfth Amendment. Making this claim would be the height of hypocrisy, of course, because the Supreme Court relied on Florida’s supposed wish to comply with the Electoral Count Act as the basis for its December 2000 ruling to stop the counting of ballots in the Sunshine State and hand the presidency to Republican George W. Bush. But as we have seen in the GOP rush to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death, hypocrisy is the party’s brand.
Accordingly, we can expect the Trump team to argue that with Pennsylvania’s ballots in dispute, the presidential selection falls to the House of Representatives. And even though Democrats hold a clear majority in the House, the Twelfth Amendment specifies that in resolving presidential contests, each state delegation gets only one vote; so absent a shift due to the coming election—a shift that Speaker Pelosi and the Democrats are working hard to achieve but obviously cannot guarantee—Republicans would have the edge.
Trump’s Denominator Problem
But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).
We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House.
Historical practice confirms that the Constitution means what it says. Only two presidential elections have ever been decided by the House of Representatives. In 1800, Thomas Jefferson and his running mate Aaron Burr received the same number of votes. The denominator issue never arose because it was irrelevant: a tie produces no winner regardless of the denominator.
Neither did the denominator issue arise in the election of 1824, when the House decided the contest because the Electoral College votes were split among four candidates. Since then, no presidential election has gone to the House. The two subsequent contested presidential elections were resolved by other means.
In 2000, despite calls by some Democrats for a contest in Congress, Al Gore conceded the election following the Supreme Court’s controversial decision.
In the election of 1876, four states sent competing slates of electors. Had Congress deadlocked over which slate to count, it could have declared the Democratic candidate, Samuel Tilden, the winner, as he had more undisputed electoral votes than did the Republican Rutherford B. Hayes. Excluding the contested states’ votes would have lowered the denominator sufficiently for Tilden to win. But Congress did not deadlock. Instead, desperately wishing to avoid a renewal of the Civil War, it enacted a law creating a special commission to determine the actual outcome in the contested states. After the commission found for Hayes, he became President.
The 1876 resolution was hardly ideal, mostly because it resulted from a deal by which Republicans got the presidency and Democrats (then predominantly based in the South) got the end of Reconstruction and the start of Jim Crow. To avoid a similar fiasco in the future, Congress enacted the Electoral Count Act that we now expect Trump to seek to circumvent. But so far as the current question is concerned, two facts stand out.
First, as we have explained, the denominator issue simply did not arise in the 1876 election aftermath. And second, to the extent one thinks that congressional Democrats were foolish for not pushing to exclude the votes of the contested states from the denominator to give Tilden a victory, such foolishness has little to no bearing on the meaning of the Twelfth Amendment, ratified over seven decades earlier and plainly requiring a majority only of the electors actually “appointed.” On the only plausible reading of the Constitution’s text, Trump’s effort to throw the election into the House of Representatives should fail.
The Standoff Would End with Biden Taking the Oath of Office
To say that Trump’s House gambit should fail under the Constitution’s plain language does not tell us what would happen on the ground. How would the post-election conflict play out in practice?
Let us consider the best-case scenario for Trump if he loses not only the popular vote but also the Electoral vote by any fair reckoning. Nonetheless, Republican-dominated legislatures would quickly get to work invalidating their own voters’ choice, creating weeks of uncertainty as challenges work their way through the courts.
In the end, would it all be decided by the courts? That is clearly what Trump and the Republicans are hoping, as Trump has said openly and repeatedly that he is eager to replace the late Justice Ruth Bader Ginsburg with someone who will vote for him in any Supreme Court litigation later this year.
And maybe the Supreme Court, as newly constituted, would indeed ignore the law and all of its own relevant precedents. Short of that, however, the Court would appropriately treat the kind of question we are considering now to be non-justiciable—that is, as a “political question” that the courts should leave to the elected representatives of the country. Before the electors are designated, there might be state law issues for state courts to resolve, but unlike in the 2000 presidential post-election litigation, once the Electoral College convenes there would not even be a fig leaf of a justiciable federal question to warrant involvement of the U.S. Supreme Court.
In our example above, then, Trump’s people would be demanding that the House convene to decide the presidential election (assuming they had retained their 26-24 edge), but the leadership of the House would rightly say that the election had already been decided, leaving nothing for the House to do. Trump could fume and rage, but under the Constitution’s plain language, the House would simply not have the legal authority to vote on an election that had already been decided.
On January 20, 2021, then, Joe Biden would take the oath of office as the duly elected President of the United States, having not only won the popular vote but having won a majority of the electoral votes that had been cast. Trump would then face whatever awaits him in his post-presidential life.