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What a Weeks-Long ‘Election Night’ Might Look Like

Here are the deadlines imposed by the Constitution and federal law for picking the next president.
by Kim Wehle
August 10, 2020
Featured Image
The Resolute desk is seen in the Oval Office of the White House, February 9, 2018 in Washington, DC. (Photo by Olivier Douliery-Pool/Getty Images)

Nearly seven weeks after New York’s Democratic primary, the 12th district race between Rep. Carolyn Maloney and Suraj Patel remains uncalled. Although Patel joined New York voters to sue the New York State Board of Elections over the invalidation of mail-in ballots, the delay is more about logistics than nefariousness: The task of counting an unprecedented number of mail-in ballots during a pandemic with outdated equipment, insufficient staffing, and stretched budgets is daunting. Similar delays will happen across the country in November, thrusting the presidential election into limbo as state and local officials scramble to do their jobs.

There are many possible worst-case permutations here, a number of which were recently war-gamed by the nonpartisan Transition Integrity Project. But let’s assume that New York’s experience is a harbinger of what we can expect nationally. The key deadline to keep in mind for the presidential election is December 14, the date set by federal law for each state’s chosen electors to the Electoral College to “meet and give their votes.” What if a state can’t get the ballot counting done within the eight-week span between Election Day and December 14? Or what if lawsuits over the legitimacy of mail-in ballots indefinitely clog the process?

The same statute has an answer: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” Translation? State legislatures can pass new laws for picking electors if normal vote-counting procedures don’t work in time for the December 14 deadline.

But there’s more. The law goes on to require that any alternative method of picking electors must occur at least six days before the December 14 deadline—that is, by December 8. The statute specifically contemplates that the final determination could be made “by judicial or other methods or procedures,” and that whatever happens “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution.”

When the electors meet on December 14, they are supposed to certify their votes—to sign, seal, and deliver official copies of their votes to the president of the U.S. Senate, the archivist of the United States, their own state’s secretary of state, and a district judge. If, by the fourth Wednesday in December, which falls two days before Christmas this year, the Senate and the archivist still haven’t received the certified votes, they will demand that the state secretary of state and the district judge immediately send their copies of the electors’ certified votes—the former by registered mail and the latter via a special messenger.

The statute requires that Congress—which is to say, the new Congress—hold a joint session on January 6 to certify the electoral vote based on “the certificates and papers purporting to be certificates of the electoral votes.” (Since the sitting vice president of the United States, in his capacity as president of the Senate, is charged with overseeing the counting of the votes, the odd spectacle has occasionally arisen of a vice president formally announcing his own victory, as in the case of George H.W. Bush, or defeat, as in the case of Al Gore.)

Of course, it is conceivable that a state’s slate of electoral votes will remain in dispute even at this point. Imagine that mail-in ballots aren’t fully counted on December 8 in a red state, so the Republican-dominated state legislature steps in to cast its electors for Trump. Imagine further that the popular vote in that state was leaning heavily in favor of Biden. Lawsuits are filed to force the state to certify its electors under its pre-existing winner-takes-all system of casting electoral votes notwithstanding the new legislation.

If, for whatever reason, there is no clear winner of the Electoral College on January 6, we could wind up in what’s known as “contingent election” decided by Congress—only three of which have been held throughout American history, all before 1840.

The first contingent election, in 1800, resulted when running mates Thomas Jefferson and Aaron Burr received an identical number of electoral votes (the Democratic-Republican plan had been to ensure Jefferson received one more vote than Burr, but something clearly went wrong). Under the original constitutional process then still in place, the House of Representatives was to pick the president from the choice of Jefferson and Burr, with each state’s House delegation casting one vote. A majority of the state delegations—nine at the time—would be required for victory. But on the first ballot, two delegations deadlocked, submitting blank ballots, so neither candidate got the necessary majority majority. Eventually, Alexander Hamilton persuaded enough delegations to switch their votes to Jefferson to elect him on the 36th ballot. End result: Jefferson became our third president, Burr shot Hamilton in a duel, the Twelfth Amendment was ratified in 1804 to keep this from happening again, and Lin-Manuel Miranda would eventually become richer than 61 percent of sovereign nations.

The second such instance—and the only one involving the presidency after ratification of the Twelfth Amendment—occurred as a result of the 1824 election, in which four candidates split the electoral vote, with none of them getting the required majority. The top three vote-getters were thus thrown to the House: Andrew Jackson, John Quincy Adams, and William Crawford. Jackson received a plurality of both electoral and popular votes, but Henry Clay (who had come in fourth) threw his considerable weight behind Adams. That was all the House needed to elect Adams on the first ballot (13 votes to Jackson’s 7 and Crawford’s 4). Adams promptly repaid Clay by making him his secretary of state, giving rise to accusations of a “corrupt bargain” that gave Jackson the momentum he needed to crush Adams in 1828.

The third contingent election, which followed the vote of 1836, was to select a vice president, a job quickly dispatched by the Senate, per the Twelfth Amendment.

Today, it is the Twelfth Amendment and the Twentieth Amendment (mandating that the president’s term begin on January 20) that set out the procedures for contingent elections, along with the Presidential Succession Act of 1947 and the procedural rules for the House and the Senate.

Under the rules now in place, the state delegations in the House must vote in blocks to choose among the top three electoral vote-getters, with each delegation casting a single vote. An absolute majority of 26 states would be required to elect a president in this scenario. Right now, Republicans hold a majority of state delegations in the House even though Democrats have a majority of representatives. If the House configuration changes as a result of the November election, the 26-state majority could shift to Democrats.

Meanwhile, should no candidate for vice president receive a majority of electoral votes, the Senate would assume, as it did in 1837, the role adopted by the House for presidential elections and choose between the top two vote-getters by a majority, with each senator casting one vote.

So if the House cannot agree on a president, the Senate could still choose a vice president, who would be sworn in as acting president under the Presidential Succession Act until a president is chosen. If the Senate remains in Republican hands, then, America could have a Republican interim president regardless of the popular or Electoral College votes for Biden.

We are in largely uncharted territory here. Although midterm elections went forward during the 1918 pandemic, turnout that year was low. In the COVID-19 era, it is becoming increasingly clear that laws and lawsuits will not be our way out of this nightmare. Record numbers of voters must come out to choose one candidate by such huge margins that the news cycle becomes dominated by the new administration’s plans for fixing America—rather than obsessing over contested mail-in ballots and related electoral details that can’t change the outcome anyway.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.