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| action.momsrising.org |
Hello Everyone:
Blogger Candidate Forum is stepping in today for a chat about the upcoming general elections. It promises to absolutely wildest ride to the finish of the most surreal president election in history. Speaking of voting, have you made a plan to vote? If you did make a plan, good for you. If you have not made a plan, stop reading, please text VOTE to 30330, make your plan, then come back to read the post. What does The Candidate Forum plan to talk about today? What would happen if there is no clear winner on election night?
| The candidates fivethirtyeight.com |
What would happen if there is no clear winner or a tie on Election Night November 3, 2020? With all the confusion over mail-in ballots, American voters could end waiting until the ballots are certified by the state secretaries of state and the Electoral College. If there is still no winner, then Congress decides the outcome: The House of Representatives decides the president and the Senate decides the vice president. Fortunately, a contested election is not a typical occurrence. With the exception of a few elections, the most recent being Bush-Gore in 2000 (google that), general elections tend to be pretty routine. The ballots get counted and a winner is declared. However, 2020 and routine exist only in alternate universes. Fortunately, The United States Constitution has the solution to this complicated problem.
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| buildingblocksforliberty.org |
At issue was the fact that there was no separate vote for vice president, leaving it up to the political parties to coordinate among their electors to ensure the vice presidential candidates had least one fewer electoral vote than the president (Ibid). The first test of test of the 12th Amendment came on December 1, 1824, when the selection period for the Electoral College concluded and neither candidate for president--John Quincy Adams or Andrew Jackson--had a clear enough majority to become president (spoiler alert: John Quincy Adams was declared the winner on February 9, 1825). Fortunately, the 12th Amendment was ratified 20 years earlier and established a clear procedure for selecting a president and vice president. The Amendment reads:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct the person voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed sealed to the seat of the government of the United States... (Ibid)
The 12th Amendment was again put to the test when the 1836 presidential election ended with no clear winner. Eventually, Martin Van Buren was declared the eighth president. However, we are living in the 21st century and elections, large and small, have gotten more complicated. What if there is no president on Inauguration Day 20 January 2021? Short answer, President Nancy Pelosi anyone? Long answer is a little more involved.
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| The Florida recount of 2000 npr.org |
First thing's first, even if the General Election on November 3rd ends up being contested in court, the United States will still have a president on Inauguration Day. The states have a month to count the ballots, including the anticipated surge in mail-in ballots and conducts re-counts if necessary. However, everything has to be completed by December 14th, when the states' electoral votes are cast (abc13.com; Sept. 16, 2020). The federal courts are generally prefer not to get involved in election matter, mindful of the 2000 election cycle when the U.S. Supreme Court finally ended Florida's vote recount, saying time had run out before the electors were set to meet (Ibid).
When the electors do meet, the candidate who earns at least 270 out of the 538 electoral votes wins. Even that may still not be enough because there could still be election issues that still prevent either former Vice President Joe Biden (D-DE) or incumbent Mr. Donald Trump (R-NY) from taking his seat in the Oval Office. The 12th Amendment is the answer.
The 12th Amendment tasks the House with choosing the president and the Senate with selecting the vice president. This takes place at the beginning of January, when the new Congress is sworn in. This process is called a "contingent election" (Ibid). Only one president was chosen this way--John Quincy Adams. A contingent election works like this:
...House members have to choose among three people with the most electoral votes. Each state delegation gets one vote, 26 votes are required to win. In the Senate, the choice is between the top two electoral vote-getters and each senator gets a vote, with 51 votes required to win (Ibid).
Worst case scenario, the 20th Amendment takes over and the vice president-elect acts president until there is a president. What if there is no vice president? The Presidential Succession Act applies and the Speaker of the House becomes the temporary president--i.e. President Nancy Pelosi. However, the presidential election of 1876 offers a more relevant example of a contested election.
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| Governors Rutherford B. Hayes and Samuel J. Tilden pottsmerc.com |
When asked if he would accept the results of the 2020 election, if VPOTUS Biden, the incumbent president cryptically answered that he will see. The contest between Republican Ohio Governor Rutherford B. Hayes and Democrat New York Governor Samuel Tilden offers us an example when one party refuses to accept the results of an election.
The initial returns of the 1876 Elections indicated that Governor Tilden was the winner. By midnight Election Day, he captured 184 out of the 185 electoral votes needed to win and led the popular vote by 250,000 (digitalhistory.uh.edu; Sept. 16, 2020). The Republicans refused to accept the results, alleging the Democrats used physical intimidation and bribery to discourage African Americans from voting in the South (Ibid). Who would be president came down to contested results in Florida, Louisiana, and South Carolina as well as Oregon. These states each submitted two sets of electoral returns to Congress, with two sets of results. To finally resolve the matter, a commission was set up.
In January 1877, Congress appointed an electoral commission made of five representatives, five senators, and five SCOTUS justices. The commission voted along party lines to award the disputed electors to Governor Hayes. The result produced a great deal of acrimony such that there were real concerns about a second civil war. Democrats threatened a filibuster to prevent Governor Hayes from assuming the presidency. Following a meeting at the Wormley Hotel in Washington D.C., Democratic Congressional leaders finally accepted Governor Hayes' election in exchange for withdrawing federal troops from the South--effectively ending Reconstruction--funding for internal improvements in the South, and the appointment of a prominent Southerner to the cabinet (Ibid).
Hopefully, the Election of 2020 will not come down to a select commission determining the outcome but the 1876 Election does offer us a way to deal with a recalcitrant president. For their parts Speaker Nancy Pelosi and Vice President Mike Pence should publicly pledge to stand united and certify the election, without any shenanigans, legal or otherwise, when the new Congress is sworn in January. The United States Constitution offers us a clear path to an orderly transition of power. The question is whether anyone will follow it.
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