As of this writing 7 states have seen presidential votes cast from each party, making this a “contested election”. Pennsylvania, Georgia, Wisconsin, Arizona, Nevada, New Mexico, and after some serious drama Michigan will each present congress with alternate slates of electors to chose from.
What happens next is going to be complicated. As Guvernor Morris a Constitutional Senator from Pennsylvania once said, “When this article was under consideration in the National Convention it was observed, that every mode of electing a chief magistrate of a powerful nation hitherto adopted is liable to objection”.
The accepted method of deciding the election was developed after the 1876 contested election which saw an 11th hour deal that gave Rutherford Hayes the presidency in return for the withdrawal of union troops from the occupied south. In 1877 Congress established the Federal Election Commission to investigate disputed elections, and with it, the Electoral Count Act, a law so oblique that it has been described as “very confusing, almost unintelligible”. Having read it, this author can only describe it as legal spoken in tongues…
Given the likelihood of a contest at this point, where 2 sets of electors are sent from multiple states, the first scenario would be Congress and the Senate unanimously rejecting one slate of electors from each state and counting the other arriving at a result. If this fails, we are to fall back on the Electoral Count Act.
Under the act, each chamber selects a slate of electors to accept. This count is conducted by the congress sworn in January 03. If the two tallies disagree, there is some debate on how to proceed. Each house is supposed to reconcile their tallies independently, and without speaking to each other. In an attempt to get them in agreement. Some legal arguments favor weighting the electors provided by the Governor, and some by the state legislation. Chris Land and David Schultz of the Rutgers Journal of Law and Public Policy suggest the entire act is unenforceable (and I thank God for their clear eyed view here).
The likely next step advised by this act would be that the President of the Senate is allowed to chose which electors are selected. Given that it would likely let a Vice President appoint himself there is a valid constitutional challenge here.
Another possible outcome is to simply reject the contested states ballots. If no candidate reaches 270 electoral votes, then there would be a clear remedy, which is to allow each state a congressional rep to cast a vote for the President and Vice President which is the remedy prescribed in Article 2, Section 1 of the Constitution, and refined in the 12 Amendment of the same.
What do you think will happen? Let us know in the comments below.