It is January 6, 2025, and Kamala Harris has won five of the seven swing states (losing only Georgia and North Carolina), giving her 287 Electoral Votes to Donald Trump’s 251. After two months of post-election insanity, however, the Trump team has prevented Harris’s slate of electors from Pennsylvania from being appointed.
How Trump’s people might pull that off is beside the point here, but in this scenario, Harris’s nineteen electors from the Keystone State have not been properly appointed, while Trump has not been able to get his fake electors appointed, either.
Vice President Harris presides over the joint session of Congress to count electoral votes, and after all of the appointed electors have been properly counted, she looks up and announces: “The next President of the United States is Kamala Harris.” Why? Harris’s electoral votes exceed Trump’s, making her the winner. Harris wins: 268-251.
But wait! Everyone knows that it is “270 to win,” right? There is even a website for political junkies with that name. Is it not true that a candidate has to win at least 270 electoral votes? No, that is not true. Not as a matter of argument but as a matter of fact, it is not true that a presidential candidate can only win the Electoral College with at least 270 votes.
Even so, it is perhaps unsurprising that many people misunderstand the relevant rule under the Constitution and worry that if Trump’s minions could simply whittle Harris’s total under 270, they would prevent her from winning. Again, however, that is not true, removing at least one nightmare scenario from what might play out between now and Inauguration Day.
This Is Simple Reading Comprehension: The Constitution Does Not Give Republicans a Magic Wand to Push the Election into the House
What is going on? Yesterday, I co-authored an op-ed with Professors Michael Dorf and Laurence Tribe, explaining why Harris would win under the scenario that I just described. (There are other combinations of swing states that would also work to illustrate the point, but we went with the one described above.) Our urgent purpose was to expose what we call the “House-decides error.” Shortly after the piece was published, Professor Tribe tweeted out a link to call attention to this potentially world-changing constitutional matter.
[As an aside, I should note that our piece was published on the op-ed page of The Washington Post, which at the moment is the subject of a great deal of fully justified anger. In a post on Dorf on Law, Professor Dorf explains the sequence of events that led to the uncomfortable timing of our piece’s publication, and he also explains why he, Professor Tribe, and I ultimately decided not to pull it in protest.]
What is the House-decides error? As it happens, Trump’s people talked about this very idea four years ago, and the Buchanan-Dorf-Tribe trio wrote a piece debunking it here on Verdict: “No, Republicans Cannot Throw the Presidential Election into the House so that Trump Wins.” As we wrote back then, and as we showed again yesterday, this is most definitely not one of those constitutional questions that rides on contestable definitions of terms like “equal protection” or “cruel and unusual.”
This is, in fact, in the same category as the constitutional provision requiring that a person must “have attained to the Age of thirty five Years” in order to be eligible to serve as President. The relevant language from the Twelfth Amendment is clear: “The person having the greatest number of [electoral] votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).
When would that not be true? Only in two situations: (1) a third-party or independent candidate wins enough electoral votes to prevent either Harris or Trump from winning a majority of the appointed electors, or (2) there is a tie. The first situation will not happen in 2024. And as the analysis below will demonstrate, the practical reality is that “a tie goes to Trump.” But crucially, it would have to be an actual tie, which is highly improbable—and even though it is at least possible, an Electoral College tie is not what people are talking about when they make the House-decides error.
Again, those are the two and only two cases in which the electoral vote count would not determine who is the next President. Getting Harris under 270—the majority of the total number of electors who could have been appointed—would not stop her from winning. 268 is a majority of 519 (538 minus Pennsylvania’s unappointed 19), which would thus be the relevant denominator for Twelfth Amendment purposes. By its clear language, the Twelfth Amendment only cares about electors who have been appointed.
Why do the Trump people want the Twelfth Amendment to mean what it does not mean? When the predicate laid out in the amendment is not met—that is, when no candidate has a majority of the appointed electors—“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.” Because Republicans will probably continue to hold majorities in 26 or more states in the House that will be sworn in on January 3, Republicans are confident that the House would decide on Trump.
So, sure, an Electoral College tie would be good for Trump. But the House-decides error is not about ties, and it could potentially result in people accepting an error that would put the loser—as determined by clear constitutional rules—in the White House.
This Is a Case of a Disastrously Inaccurate Conventional Wisdom Having Taken Hold, Even Among People Who Should Want to Avoid the House-Decides Error (or Any Error)
As noted in our Post op-ed, we are worried because we have seen and heard a surprising number of prominent Democrats make the House-decides error. Why would they do that? We do not pretend to explain, but my best guess (given that many of the people who have echoed the House-decides error are excellent lawyers) is that they did what I originally did when I heard someone misstate the procedure. I thought, “Well, I sort of remember the Twelfth Amendment as being very weird, and yeah, there was definitely something about an unusual House vote in there. I guess that’s another mistake by the Founders. Oh well.”
And to be clear, there is nothing about either the correct or incorrect version of the Twelfth Amendment that could qualify as “intuitive” or “logical.” The men who wrote that Amendment could just as easily have decided to require a majority of the total possible electoral votes, and that would have been equally weird. So there is no reason for surprise when people who have not recently looked at the relevant language of the Constitution might—in complete good faith (which I am sure is true of the examples below)—repeat the misinterpretation.
Whatever the reason for the propagation of the House-decides error, what matters now is to correct what is in danger of becoming an unexamined error of catastrophic proportions.
And many of those who have repeated the erroneous version of the Twelfth Amendment are very smart, careful people who are motivated to prevent Trump from stealing the presidency. We cite by name Jamelle Bouie, a New York Times columnist who wrote earlier this month that Trump “will try to prevent individual states from certifying their electoral votes in hopes of triggering a contingent election in the House of Representatives.” Bouie is right that Trump would try to prevent electors from being appointed, but even a successful such effort would not (again, unless it created a tie) throw the election to the House. For what it might be worth, the embedded link in Bouie’s piece does not make that error.
To be very clear, Trump’s people could have so much success in knocking out Harris’s slates in enough states that he would win the election. As an illustration, we describe a 251-247 win for Trump. But to be even clearer, that would mean that he would win because he had a majority of the (reduced number of) appointed electors, not because the House would decide who becomes President.
The House-decides error has, however, become a widespread misapprehension. A few days before Bouie’s piece ran, Neal Katyal wrote an op-ed in The Times similarly presuming that the House-decides error is not an error. Katyal is an absolutely top-flight legal mind, and his excellent piece was not focused on the Twelfth Amendment. Even so, he added this at one point: “If no candidate gets a majority of the Electoral College, either through mischief or a simple tie, then the Constitution sends the election to Congress. … If for whatever reason no candidate gets a majority of electoral votes, the House will decide the presidency.” Again, that is true of a tied vote, but it is false in every other instance where there are only two candidates who win electoral votes.
And it is not only commentators who have gotten this wrong. An otherwise informative piece in Politico titled “The Very Real Scenario Where Trump Loses and Takes Power Anyway” included a matter-of-fact repetition of the House-decides error. In the section ending that piece titled “The House Picks a President,” Politico writes: “If Republicans, through the speaker’s maneuvering, prevent either candidate from garnering an Electoral College majority, it would trigger what’s known as a contingent election in the House, with each state delegation getting a single vote.” Note that there is no awareness that “garnering an Electoral College majority” means winning a majority of those appointed, not of those that could have been appointed.
Again, I have every reason to believe that Bouie and Katyal would both be happy to know that this particular Trumpian gambit cannot work. Politico would want to know as well, simply to make their reporting accurate. And as I noted above, these are hardly the only people who have prominently repeated the House-decides error.
How Could Trump’s People Respond?
In yesterday’s Buchanan-Dorf-Tribe op-ed in The Post, we note that the drafters of the original Constitution and the Twelfth Amendment were more than capable of understanding when modifiers need to be added to make a provision clear. There was no reason to add “appointed” to that amendment if the drafters meant otherwise. That is why I wrote above that this is not a matter of interpretation. There is nothing vague or unclear.
And because so many Republicans claim to be textualists, should that not resolve the matter? How would they respond? In recent years, we have seen far too many examples of made-up law (the Supreme Court’s immunity ruling earlier this year being only one of the most extreme), but embracing the House-decides error would require a misreading of the Twelfth Amendment so extreme that it might make even this Republican-appointed majority blush. (OK, maybe not.)
One could imagine Trump and congressional Republicans complaining that we should not get “hypertechnical” and decide the presidency on the basis of even the clear meaning of an inexplicable and obtuse constitutional provision. But recall that the Electoral College itself is an obtuse constitutional provision that is no longer obscure only because it has become the technicality through which Republicans have been able to install their last two presidents in office.
To put it differently, the pro-Trump argument would be that we must use the incorrect version of an inexplicable and obtuse constitutional provision rather than the version that was in fact written into the Constitution. To make matters worse, the incorrect version that they might prefer is less small-d democratic than the correct version, which is itself even less small-d democratic than the Electoral College, which of course is utterly small-d un-democratic in the first place.
There is no philosophical justification for being able to block Harris from winning simply by pushing her total below an arbitrary number that is not constitutionally required. There is, in fact, no reason for the Twelfth Amendment to have created this possibility at all, but given that it is in there, we should at least not make matters worse by getting it wrong.
Therefore, if Vice President Harris faces a situation similar to the one that I described above, she would rightly be able to say: “So I win.” I cannot, of course, add “and uncontroversially” to the previous sentence, but that is only because Trump and his people would throw a (baseless) fit. Sadly, it would most likely be a violent one as well.
The most important thing that must happen immediately, however, is for people to stop believing the House-decides error. It is indeed an error of possibly epic proportions, and although seeing it for what it is does not close every door to Trumpian malfeasance, those who oppose him should understand that at least one gambit is simply off the table.