This news may not be surprising to those who have been paying attention to the abundant speculation about a contested presidential election leading to chaos in and beyond the Electoral College, with Congress (or the Supreme Court) having to grapple with competing slates of electors thanks to a slow count and the president’s incessant efforts to delegitimize voting by mail. But one possible endgame is that the Electoral College system may fail, either because of a tie vote or the inability to chose electors at all in disputed states, throwing the election to the U.S. House per the “contingent” procedures laid out in the 12th Amendment. And Speaker Nancy Pelosi is already focusing on reversing a current Republican advantage if that comes to pass, as Politico reports:
Under that scenario … every state’s delegation gets a single vote. Who receives that vote is determined by an internal tally of each lawmaker in the delegation. This means the presidency may not be decided by the party that controls the House itself but by the one that controls more state delegations in the chamber. And right now, Republicans control 26 delegations to Democrats’ 22, with Pennsylvania tied and Michigan a 7-6 plurality for Democrats, with a 14th seat held by independent Justin Amash.
Pelosi, in a Sunday letter to House Democrats, urged them to consider whether the House might be pulled into deciding who is president when determining where to focus resources on winning seats in November. This could lead to more concerted efforts by Democrats to win in states such as Montana and Alaska — typically Republican turf but where Democrats have been competitive statewide. In these states, Democratic victories could flip an entire delegation with a single upset House victory.
The 12th Amendment requires a majority of state delegations in the newly elected Congress to elect a president, so flipping one delegation in the Democratic direction could deny Republicans the wherewithal to reelect Trump. The landscape is complicated:
Democrats hold a one- or two-vote seat edge in seven states that are expected to feature at least one sharply contested House race: Arizona, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire. Republicans hold a similarly tenuous edge in Florida. The Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally.
The Senate, however, is empowered to elect the next vice-president by a simple majority, and the veep would become president in case the House deadlocks on the top job. So the scenarios include Trump’s reelection by the House and Pence’s by the Senate; a weird Trump-Harris combination (or much less likely, a Biden-Harris or Biden-Pence administration); Pence or Harris becoming president; and finally, Nancy Pelosi becoming president if Congress deadlocks on both the presidency and vice-presidency.
Congressional election of a president has happened just once, 196 years ago. With the country’s first two-party system having collapsed, four candidates representing different factions of the Democratic-Republican Party ran for president. Andrew Jackson won a plurality of the popular vote (44 percent) and the electoral vote (38 percent). Because the 12th Amendment limits the House to the top-three vote-getters, fourth-ranking Henry Clay (making the first of three unsuccessful presidential bids) was eliminated — but accordingly was able to act as kingmaker, throwing his House support to John Quincy Adams, who won a spare majority of 13 delegations out of the 24 then voting.
Had Clay’s gambit failed and no one won a majority of states, the sixth president of the United States would have been the slavery champion and future nullifier John C. Calhoun, who was easily elected vice-president by the Senate. As it happens, Jackson and his supporters accused Clay of reaching a “corrupt bargain” with Adams (who made the Kentuckian his secretary of State, which in that era was considered a stepping-stone to the presidency) to deny the presidency to the popular-vote winner and Clay’s “western” rival, Old Hickory.
So, 2020 isn’t the first time the country has experienced insane and unpredictable presidential elections.