I think it’s safe to say 2020 has been a year for the history books. The COVID-19 pandemic, the killings of George Floyd and Breonna Taylor that sparked widespread protests for racial justice, President Donald Trump’s acquittal, and a World War III scare are just a few of the wild events that have taken place this year. And we’re only halfway through. We still have a presidential election coming up in a few months.
At the moment, presumptive Democratic nominee Joe Biden is the favorite to win and make Trump a one-term president. But in a year where Murphy’s Law reigns supreme, what happens if November’s presidential election doesn’t produce a decisive winner? Even worse, what happens if it ends up tied at 269, something that could possibly happen given the way the electoral map is configured? What
worse better way to end 2020 than with a major constitutional crisis?
Here’s one wacky possibility: in a perfect storm, Speaker of the House Nancy Pelosi could end up becoming Acting President of the United States in 2021. I have to stress that this would be extremely unlikely, but given everything else going on, I feel like it’s a fascinating scenario worth exploring in some depth. Here’s how it could happen:
1. Biden and Trump tie in the Electoral College, forcing a contingent election
Right now, Biden appears to hold a double-digit lead over Trump nationally and is leading in several key swing states. This bodes well for Democrats come November, but the specter of 2016 still lurks in many people’s minds. Biden’s lead is both larger and more durable than Clinton’s at this time four years ago, but Trump could very well make up some ground over the next four months and win the Electoral College while losing the popular vote.
Suppose Trump narrows the gap between now and Election Day to about four points nationally. Maybe job numbers improve and the number of new COVID-19 cases dips, inspiring some confidence. Maybe Biden emerges from his basement and has a series of gaffes on the campaign trail that cause him to stumble down the stretch. In this scenario, a combination of factors—and maybe some funny business with voting machines and mail-in ballots—leads Trump to perform better than expected in Florida, North Carolina, Arizona, and Wisconsin. However, Biden still flips Pennsylvania, Michigan, and Maine’s 2nd congressional district. The resulting map would look like this:
Per the Twelfth Amendment, in the event that neither Trump nor Biden receives an absolute majority of electoral votes (at least 270), the newly elected 117th Congress would go into session immediately to select both the president and vice president in separate contingent elections. Such elections have only happened three times in American history: 1800, 1824, and 1836.
2. Contingent election stalls in the House as Florida’s state delegation flips
To select the president, the House of Representatives would vote en bloc in state delegations, with each state receiving one vote. The District of Columbia, which doesn’t have voting representation in either chamber, wouldn’t receive a vote. The majority of members in a delegation must vote for a single candidate for the state’s vote to count toward the final tally, otherwise the state is marked as “divided.” A candidate must receive an absolute majority of states (26) in the House of Representatives to be elected. In the event that no candidate receives a majority of states, the process would continue on successive ballots until one does. In the 116th Congress, 26 state delegations have Republican majorities, 22 have Democratic majorities, and two are divided (though Michigan has a Democratic plurality since Justin Amash left the Republican Party in 2019).
If the above partisan breakdown were to remain the same in the 117th Congress, Trump would likely win the majority of state delegations and would subsequently be reelected. However, there are two swing states—Florida and Wisconsin—with slim Republican majorities in their House delegations that could be candidates to flip. Florida, which currently has 14 Republicans and 13 Democrats, would only need to have one seat to flip to move over to the Democratic column, while Wisconsin, which has 5 Republicans and 3 Democrats, would need one seat to flip to become divided.
The composition of Wisconsin’s House delegation will likely stay the way it is given that its House districts are all considered safe. The same is true for those safe GOP states with at-large representation: Alaska, North Dakota, South Dakota, and Wyoming. Florida, however, has several competitive districts. For example, Florida’s 15th district, which includes the city of Lakeland and suburbs of Tampa, is a traditionally Republican district with Republican Ross Spano as its representative. But it also has plenty of the kind of suburban voters that Trump has been hemorrhaging since 2016. With a Cook PVI of R+6, FL-15 is a possible candidate to flip blue in what currently projects to be a Democratic wave (I’m also aware that if FL-15 flips, then Florida probably also flips and Biden wins, but just go with it).
In the scenario where FL-15 flips, assuming that Florida, Pennsylvania, and Michigan don’t lose any Democratic seats and states like Arizona, Colorado, Iowa, and Minnesota lose no more than one, Republicans would have majorities in no more than 25 state delegations. If each member of Congress votes along party lines, neither Trump nor Biden would win on the first ballot, requiring successive ballots until enough representatives flip to produce a winner.
The key here is that the House would need to remain gridlocked beyond noon on January 20, 2021—the official end of Trump’s first term—for an acting president to take power. Normally, the incoming vice president would assume the role of acting president. But, what happens if the Senate also fails to elect a vice president?
3. Democrats gain three net seats in the Senate to force a 50–50 tie
Republicans currently have a Senate majority with 53 seats. Democrats control 47 seats (two independents caucus with them). To win back the majority, Democrats would need to pick up a net three seats, assuming Biden wins and his vice president can break the tie, or four seats if not. Because Democrat Doug Jones is trying to defend his seat in deep red Alabama, his reelection prospects aren’t exactly great, so Democrats probably have to flip at least four seats from among competitive races in Arizona, Colorado, Georgia (x2), Iowa, Maine, Montana, North Carolina, and (possibly) Texas to win a majority.
But in this scenario, somewhat counterintuitively given the above presidential election results, enough Democratic senate candidates outperform Biden in these traditionally Republican or Republican-leaning states to produce a 50–50 tie in the country’s upper chamber.
Here’s where it gets interesting: because of the tied electoral map, the Senate would be charged with selecting the vice president from the top two electoral vote–getters—in this case, Mike Pence and Biden’s running mate. Unlike in the House, the individual senators each have a vote, and a candidate must receive a majority of votes to become vice president as per the Twelfth Amendment.
Since the Senate of the 117th Congress would be evenly split, neither vice presidential candidate would win on the first ballot. There remains some ambiguity as to whether the sitting vice president—i.e. Mike Pence—would be able to break a tie. Indeed, the topic came up in 2000 during the Bush–Gore controversy, which also featured an evenly divided Senate. That in itself would spark a constitutional crisis. If the Senate couldn’t name a legitimate vice president to serve as acting president by January 20, 2021, the presidential line of succession would mean Speaker Pelosi would ascend to the acting presidency until the House determined who to select as president or the Senate picked a vice president to replace Pelosi as acting president.
What would Acting President Nancy Pelosi look like?
I’m definitely no expert in constitutional law, so I don’t actually know what an acting administration would look like. But I’ll try to speculate:
First of all, Pelosi wouldn’t have a vice president, so if she resigned or became incapacitated, President pro tempore of the Senate Chuck Grassley would become acting president according to presidential succession laws. Pelosi’s Cabinet would be made up of acting secretaries, though I’m not sure if Pelosi would have the power to dismiss them as acting president or if the current Cabinet members would stay on in an acting role. Additionally, I’m unsure if Pelosi could serve as both Speaker of the House and acting president; if not, then I presume House Majority Leader Steny Hoyer would become Acting Speaker of the House for the time being.
Policy-wise, I’m not sure anything would actually pass. The House would remain under Democratic control, but a 50–50 Senate with no vice president to break the tie would probably ensure nothing gets to Pelosi’s desk. I don’t know if Mitch McConnell remains Senate Majority Leader in this scenario, but rest assured he’d do everything in his power to thwart any sort of policymaking by a constitutionally ambiguous government.
Pelosi’s time in the Oval Office might not even be that long, regardless of whether Congress can agree on a new president or not. Congress might pass a law appointing a different person to serve as acting president or clarifying how long an acting president can serve. Depending on how long the crisis extends, that could mean several acting presidents cycle through the White House.
I don’t even want to think about all of civil unrest that might occur with the results of the presidential election in complete limbo. Trump’s most ardent supporters might take to the streets to decry the deep state’s attempts to usurp the presidency from the sitting president, and I’m sure they would call Pelosi an illegitimate (acting) president. Some in the progressive wing of the Democratic Party would probably adopt the same smug attitude they had in 2016: “if only we had nominated a real progressive like Bernie, then we would’ve won!”
How to avert a constitutional crisis
In the event of a tie in the Electoral College, there are a few ways the country could avoid a potential constitutional crisis that would extend well into 2021. First, though the Supreme Court just ruled that states can require them to vote for their state’s popular vote winner, faithless electors could swing the election in one of two ways. For example, a Republican faithless elector could write in Biden’s name and give him the 270 votes he needs to be elected president. Or, several faithless electors could write in the names of other people, like in 2016. Since the House has to decide between the top three electoral vote–recipients, someone like Colin Powell or John Kasich could wind up with two or three electoral votes, be included in the contingent election, and emerge as a compromise candidate after several ballots (I’m not sure whether President Kasich or Acting President Pelosi is more outlandish).
Faithless electors aside, it’s possible some House members might cross party lines to put an end to the crisis. In this scenario, it’s likely that Biden would have won the popular vote by a decent margin, which could lead several Republicans to use that as justification to defect to Biden. Maybe some House Republicans would just want the Trump nightmare to be over and switch sides knowing that the cost of defecting would be lower without Trump in office to punish them. But I’m not holding my breath that many Republicans would suddenly put country over party. Alternatively, a conservative Democrat like Collin Peterson (MN-7) could flip and deliver another state delegation to Trump, giving him a majority of states.
Even with a 50–50 split, the Senate could still select a vice president before Inauguration Day. Mitt Romney, Susan Collins, and Lisa Murkowski are all senators who have a reputation of bucking their party at times. While unlikely, any one of them could defect and vote for Biden’s running mate. The same could be said about Joe Manchin voting for Pence since he could spin it as reflecting the will of the people of West Virginia, though I imagine he’d balk at being the swing vote.
The Supreme Court would also probably intervene at some point like it did in 2000. I highly doubt that the two-plus months between Election Day and Inauguration Day would pass without the nation’s highest court stepping in to either clarify the process for resolving a contingent election or issuing a ruling tantamount to determining a winner outright—e.g. allowing Pence to cast the tie-breaking vote for himself. There would definitely be cries from both sides about an unelected group of justices dictating election outcomes, but there might not be an alternative.
I don’t want to make it sound like this House of Cards–like scenario is at all likely, nor am I rooting for it in any way. I want Biden to win a decisive Electoral College victory so we can put an end to this nightmare era in American history. But the chances of an Acting President Pelosi are probably slightly greater than either President Evan McMullin or President Gary Johnson in 2016. In other words, slightly greater than zero. The likelier—though still very unlikely—scenario of an Electoral College tie would ultimately bode well for Trump; it would probably mean Biden and other Democrats faltered and the GOP kept its Senate majority and majority of state House delegations, preventing the gridlock that this blog post assumes.
I’m also sort of writing this as a commentary on why the Electoral College is a complete mess and all of the arcane and byzantine methods of resolving a tie need to be—at the very least—reexamined. A national popular vote, for example, would avoid this kind of bizarre fiasco, even if it might require runoff elections. A Twenty-eighth Amendment could update and simplify the nineteenth century rules that govern these situations, like allowing House members to vote individually rather than in state delegations en bloc. I have another blog post in the works about the various ways that could happen, so stay tuned.