What if President Trump and former Vice President Biden both fail to reach the 270 Electoral College votes needed to win?
Or they end up in a tie?
What happens next?
Do we vote all over again?
Sue in the courts?
Battle it out in the streets?
Thankfully, the Founding Fathers anticipated this possibility and provided for what is referred to as a “Contingency Election” in the Constitution. And here at SOFREP we are all about having contingency plans, so here’s how that would work.
Article II, Section I, Clause III of the Constitution states the following:
“The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President”
Stated simply, when Electoral College votes are counted and neither candidate is found to have 270 electors or their number is tied, the current House is required to immediately hold a vote. Each state gets one vote and a quorum of two-thirds of the states being present is required to have that vote. The winner is decided by a simple majority of 26 votes. One could presume that since Democrats control the House Biden would win that Contingency Vote should it occur.
Well, not so fast, because it isn’t a vote by individual members but by the individual states en bloc. A review of the makeup of the House of Representatives shows that 26 states have a Republican majority in their congressional delegations. They would vote for Trump thus making him the winner. And there appear to be three states where Democrats outnumber Republicans in their House Delegation but Republicans control the state legislatures. Washington State is such an example with three Republicans and seven Democrats in the House but a state legislature controlled by Republicans with a Democrat governor. How would that vote shake out? Could a Republican-controlled state legislature in Washington State insist its Democrat-controlled House delegation vote for Trump?
Now get this, after this vote occurs, the Senate needs to vote to elect the Vice President the same way. Again, each state gets one vote and a simple majority of 26 votes is required. In the Senate, you have 22 states where both senators are Republicans, 18 States where both are Democrats, and 10 states that are split with one Republican and one Democrat senator. This would require four of the split delegation states to vote for Mike Pence or eight of them to vote for Kamala Harris. Therefore, there is an unlikely but bizarre scenario wherein you could have the House vote to elect Donald Trump as president and the Senate elects Kamala Harris as vice president.
Now, as we wait for the remaining ballots to be counted, the above scenario might not play out. But at least you know what the contingency plan looks like if it all goes pear-shaped in the coming days. We will have a president and vice president decided calmly, deliberately, and under the rule of law in the Constitution.
As it should be.