If the Home of Representatives selects the president, every state would get a single vote – not one vote per Home member. iStock/Getty

President Donald Trump’s marketing campaign is difficult outcomes of battleground states with lawsuits, hoping to litigate its approach to a win within the 2020 election. However the Founding Fathers meant for Congress – not the courts – to be the backup plan if the Electoral Faculty end result was disputed or didn’t produce a winner.

Typically, the framers sought to keep away from congressional involvement in presidential elections. As I’ve taught for twenty years in my faculty course on presidential choice, they needed an unbiased govt who may resist ill-considered laws and wouldn’t care about currying favor with members of Congress.

That’s why they created the Electoral Faculty, assigning to state legislatures the duty for selecting “electors” who would then decide the president.

However the framers may foresee circumstances – particularly, a fragmented race between little-known politicians – the place no presidential candidate would safe an Electoral Faculty majority. Reluctantly, they assigned the Home of Representatives the duty to step in if that occurred – presumably as a result of because the establishment closest to the individuals, it may bestow some democratic legitimacy on a contingent election.

Tied or contested election

The founders proved prescient: The elections of 1800 and 1824 didn’t produce winners within the Electoral Faculty and have been determined by the Home. Thomas Jefferson was chosen in 1800 and John Quincy Adams in 1824.

Over time, the event of a two-party system with nationwide nominating conventions – which permits events to dealer coalitions and unite behind a single presidential candidate – has mainly ensured that the Electoral Faculty produces a winner. Although the Electoral Faculty has modified considerably for the reason that 18th century, it has principally stored Congress out of presidential choice.

A tie within the Electoral Faculty is a technique the 2020 election may find yourself with Congress. Within the extraordinarily unlikely situation that each Joe Biden and Donald Trump get 269 electors, the election could be thrown into the Home.

A extra seemingly situation is that the Trump marketing campaign’s litigation winds up getting Congress concerned within the 2020 election.

Although courts will resolve particular questions of authorized interpretation in voting disputes, they don’t wish to be perceived as deciding the 2020 election end result, because the Supreme Court docket did in 2000. The place attainable, judges will decline to listen to lawsuits that ask huge political questions and go away these points for the political system to resolve.

Enter Congress. If neither candidate will get to 270 electors on account of disputed ballots, the Home must resolve the election.

Although the Home has a Democratic majority, such an consequence would virtually definitely profit Trump. Right here’s why: In a concession to small states involved their voices could be marginalized if the Home was known as upon to decide on the president, the founders gave just one vote to every state. Home delegations from every state meet to resolve how you can solid their single vote.

That voting process provides equal illustration to California – inhabitants 40 million – and Wyoming, inhabitants 600,000.

This association favors Republicans. The GOP has dominated the Home delegations of 26 states since 2018 – precisely the quantity required to succeed in a majority below the foundations of Home presidential choice. Nevertheless it’s not the present Home that might resolve a contested 2020 election; it’s the newly elected Home, and plenty of Nov. three congressional races stay undecided. To this point, although, Republicans have retained management of the 26 congressional delegations they at the moment maintain, and Democrats have misplaced management of two states, Minnesota and Iowa.

Evenly divided delegations rely as abstentions, and Republican good points in Minnesota and Iowa are shifting these states from Democratic to abstentions.

Home Majority Chief Nancy Pelosi is reportedly getting ready for the chance that presidential choice leads to the Home.

Tom Williams/CQ-Roll Name, Inc through Getty Photos

Congressional fee

Maybe probably the most related precedent for a contested 2020 election that winds up within the Home is the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That election noticed disputed returns in 4 states – Florida, South Carolina, Louisiana and Oregon – with a complete of 20 electoral votes.

Excluding these 20 disputed electors, Tilden had 184 pledged electors of the 185 wanted for victory within the Electoral Faculty; Hayes had 165. Tilden was clearly the front-runner – however Hayes would win if all of the contested votes went for him.

Due to a post-Civil Battle rule permitting Congress – learn, Northern Republicans nervous about Black voter suppression – to dispute the vote rely in Southern states and bypass native courts, Congress established a fee to resolve the disputed 1876 returns.

As Michael Holt writes in his examination of the 1876 election, the 15-member fee had 5 Home representatives, 5 senators and 5 Supreme Court docket justices. Fourteen of the commissioners had identifiable partisan leanings: seven Democrats and 7 Republicans. The 15th member was a justice recognized for his impartiality.

Hope of a nonpartisan consequence was dashed when the one neutral commissioner resigned and was changed by a Republican decide. The fee voted alongside get together strains to present all 20 disputed electors to Hayes.

To stop the Democratic-dominated Senate from derailing Hayes’ single-vote conquer Tilden by refusing to substantiate its resolution, Republicans have been pressured to make a deal: Abandon Reconstruction, their coverage of Black political and financial inclusion within the post-Civil Battle South. This paved the best way for Jim Crow segregation.

Bush v. Gore

The 2000 election is the one trendy precedent for contested vote returns.

George W. Bush and Al Gore argued for a month over Bush’s slim, 327-vote benefit in Florida’s second machine recount. After a lawsuit in state courts, this political and authorized battle was determined by the Supreme Court docket in December 2000, in Bush v. Gore.

The scene outdoors the Supreme Court docket, Dec. 11, 2000.

Shawn Thew/AFP through Getty Photos

However Bush v. Gore was by no means supposed to set a precedent. In it, the justices explicitly said “our consideration is proscribed to the current circumstances.” Certainly, the courtroom may have concluded that the problems offered have been political, not authorized, and declined to listen to the case.

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In that case, the Home would have determined the 2000 election. The Electoral Faculty should solid its ballots on the primary Monday after the second Wednesday in December. This 12 months, that’s Dec. 14. If disputed state vote totals should not resolved by six days previous to that date, Congress can step in, below the 1887 Electoral Rely Act.

This might have occurred in 2000, and it’s possible this 12 months.

That is an up to date model of an article initially printed Oct. 9, 2020.

Donald Model is affiliated with Faculty of the Holy Cross Faculty Republicans.