September, 2020
Washington – Many election prognosticators are saying that the nation will not know the outcome of the presidential election on November 3, because it will take several days to count the mailed-in ballots.
That may be true, but what the nation will know on November 3, or very soon thereafter, is the strategy candidates will likely be using to try to claim the presidency. It all depends on the House elections.
If Joe Biden wins the popular vote but if the newly-elected House has more state delegations controlled by Republicans than Democrats, as is currently the case (by three), Donald Trump will almost certainly try to prevent Joe Biden from winning an Electoral College majority, claiming the election was rigged so as to have the election decided by House. But if Democrats control the new House state delegations and have reason themselves to believe the elections were not free and fair, Joe Biden may try to prevent Donald Trump from winning an Electoral College majority and throw the election into the House, where he will win.
How hard is it to prevent an Electoral College majority? Probably not that hard; the Constitution anticipates it. Trump lawyers are working on litigation toward that end, in anticipation that Trump may lose both the popular and electoral vote, but still be determined to remain in office. Some of his supporters are recommending even more drastic measures.
I was pleased to see acknowledgement of this scenario (which has been the subject of previous blogs) in Daniel Baer's excellent analysis. He writes:
According to the Constitution, if no candidate reaches a majority in the Electoral College, then the election of the President falls to the House of Representatives.... But there’s a catch: according to the Constitution, in selecting the President, the House votes not by member, but rather by state, with each state delegation receiving one vote.
How this "catch" provision has escaped so many other election analysts is a mystery. It's in the Twelfth Amendment, plain as day, and possibly critical in choosing a president.
There's one other catch that needs more attention. The Constitution (Article I, Section 5) provides that the House is the judge of its own members. The House, if under Democratic control by number, but not by state, could refuse to seat members elected in gerrymandered districts, mostly Republican. That could change the state delegation counts for purposes of electing a president.
That would be the ultimate in checks and balances. The House would check the Supreme Count for failing to act against gerrymandering while simultaneously checking a president determined to stay in office by any means necessary.
