And If There Is No Winner?

• 4 years ago

By DEACON MIKE MANNO, JD

We’re going to have an election next month — I’m sure you heard of it, it’s been in all the papers. So what happens if on Election Day no one wins? Can that even happen?

Short answer: You betcha! It not only can happen, but it has happened.

First, a short civics primer. As everyone knows by now, when we vote on November 3, or send in an absentee ballot, we are not voting directly for president but for a slate of electors who will meet on December 14 to cast the official vote for president. Each state will choose electors to correspond to their representation in Congress. So, for example, my state Iowa has four congressman and two senators, thus we get six electoral votes.

Now most states allot their electors on a winner-take-all system — you get the most votes and you get all the electoral votes in that state. Two, Nebraska and Maine, however, elect the electors on the basis of congressional districts with the statewide winner getting the two “senatorial” electors.

Then each state certifies its votes, forwards them to Washington, D.C., where on January 6 they will be opened and counted before a joint session of Congress. The candidate with 270 or more electoral votes will be officially president-elect, and the same for the vice-presidential candidates.

Sounds simple, right? Well, if everything happens as expected by the framers, it all works. But what happens if no candidate receives a majority of the electoral vote? Again, a simple answer. If that happens the House of Representatives will then meet to select the president, but there is one catch: In the House there is only one vote per state, which means that if a state delegation is split evenly between Democrats and Republicans, it can’t vote. Neither can the District of Columbia; it isn’t a state.

Now, can you imagine in the current racial climate if D.C. is disenfranchised? But it’s in the Constitution, so there is nothing that can be done about it.

So what happens with Nancy Pelosi? Doesn’t the speaker of the House succeed to the presidency until the electoral dispute is resolved? Well, even assuming Pelosi is still speaker then — remember this will be the newly elected House — that’s still not how it works. If there is no vice president elected, the Senate will choose one with each senator getting an individual vote. Thus it might be possible for either Mike Pence or Kamala Harris to be inaugurated vice president on January 20, and assume the duties of president, until the House makes up its mind.

The House, incidentally, has “elected” two presidents when there was no Electoral College majority: 1800 Thomas Jefferson, after 36 ballots, and 1824 John Quincy Adams, first ballot.

Now it is still possible that there is a continuing stalemate in Congress over both offices. That happened in 1876 in the election between Rutherford B. Hayes, the Republican candidate, and Samuel J. Tilden, Democrat. Tilden had won the popular vote and it appeared the presidency.

At the time it took 185 votes to be elected. However four states, Florida, South Carolina, Louisiana, and Oregon, totaling 20 Electoral College votes, sent in conflicting returns. Gov. Tilden had 184 undisputed votes, Gov. Hayes had 165. All the Democrats needed was one of the disputed votes to make Tilden president. But how to decide among the disputed votes?

The Constitution was no help; it only said the electoral ballots were to be opened and counted, and there was nothing giving Congress the authority to determine the legitimacy of the vote. Facing a constitutional crisis, Congress formed an Electoral Commission to look into each set of disputed returns and to determine which was correct. The commission was to be made up of 15 members, five from each house, and five members of the Supreme Court.

The congressional members were chosen by party with three members from the majority party and two from the minority — the Senate was Republican controlled and the House was in Democratic hands, thus five Republicans and five Democrats. From the Supreme Court two Republicans were chosen and two Democrats; those four would pick the fifth justice.

The four justices selected Justice David Davis whose presidential choice was unknown. However, as the bill creating the commission was moving through Congress, the Democrats in the Illinois legislature elected him to the Senate. Were they trying to win his favor? We don’t know, but if so it backfired. Davis resigned his seat on the court to accept his election to the Senate. Justice Joseph Bradley was then chosen in Davis’ place.

On every dispute, Bradley sided with the Republicans, giving all 20 votes to Hayes who was declared president-elect on March 2, 1877 — just two days before the then-inaugural date of March 4, by an electoral vote of 185-184. Unhappy Democrats decided to accept the results of the commission if Hayes would withdraw the remaining federal troops from the states that still had them left over from the Civil War.

There has been some legislation trying to clarify how Congress is to handle disputed votes, but one issue that has been left open concerns the majority necessary for election if an electoral vote is rejected entirely. For example, say there are 20 such votes rejected. What is the majority to elect, 270 of the total 538 possible electoral votes, or 260 out of 518 votes actually counted?

Can any of this happen this year? Well, it could. Remember one side is trying to overwhelm the system with what could be millions of election-day mail-in ballots (see my September 10 column, “Overwhelm and Conquer”), many of which will be rejected for procedural flaws sparking contested court cases in literally hundreds of locations. Perhaps that is why Hillary Clinton has advised Joe Biden not to concede on election night no matter what the outcome might look like.

Scary? You bet. Remember the timeline. We choose the electors November 3, the electors vote December 14, and Congress opens and counts the vote January 6, Inauguration Day being January 20.

One thing we don’t need to worry about, however. The Supreme Court ruled in July that a state may require an elector to vote as pledged, thus eliminating the problem of a rogue elector who does not vote for his party’s candidate. Thirty-two states have such a provision. Uh-oh, that means 18 states don’t. I guess we haven’t considered all the scenarios.

Can we get Harry Truman back?

(You can reach Mike at DeaconMike@q.com and listen to him every Thursday at 10 a.m. CDT on Faith On Trial on IowaCatholicRadio.com.)