Opinion
In the aftermath of the 2020 election, President Donald Trump has unleashed a barrage of litigation to review results in battleground states while also making claims that the election was tainted by “tremendous corruption and fraud.”
Trump’s campaign has filed lawsuits in Pennsylvania, Wisconsin, Michigan, Nevada, Georgia, and Arizona—states where Joe Biden “got” more votes. Trump’s lawsuits challenge aspects of voting from how long mail-in ballots can be accepted after Election Day to whether states properly verified the voter identities for mail-in ballots. Attorney General William Barr has also authorized U.S. attorneys to investigate any “substantial allegations” of voting irregularities.
People also started calling out the 12th amendment and that the 37 Republican-run states should all REFUSE to certify this fraudulent election and send it to Congress to elect the POTUS and Vice POTUS.
But is this possible?
On election day, Tuesday after the first Monday in November (November 3 in 2020), when voters cast a single vote for their preferred candidates, they are actually voting for the slate of electors in their state pledged to those candidates. In 48 states and the District of Columbia, the entire slate of electors winning the most popular votes in the state is elected, a practice known as “winner-take-all” or “the general ticket” system. Maine and Nebraska use an alternative method, the “district system,” which awards two electors to the popular vote winners statewide, and one to the popular vote winners in each congressional district.
Electors assemble in their respective states on the Monday after the second Wednesday in December (December 14 in 2020). They are expected, but not constitutionally bound, to vote for the candidates they represent. The electors cast separate ballots for President and Vice President, after which the electoral college ceases to exist until the next presidential election.
State electoral vote results are reported to Congress and other designated authorities; they are then counted and declared at a joint session of Congress held on January 6 of the year after the election; Congress may, however, change this date by joint resolution. A majority of electoral votes (currently 270 of 538) is required to win, but the results submitted by any state are open to challenge at the joint session, as provided by law.
Past proposals for change by constitutional amendment have included various reform options and direct popular election, which would eliminate the electoral college system, but no substantive action on this issue has been taken in Congress for more than 20 years. At present, however, a non-governmental organization, the National Popular Vote (NPV) campaign, proposes to reform the electoral college by action taken at the state level through an interstate compact; 10 states and the District of Columbia have approved the NPV compact to date.
The 12th Amendment to the Constitution requires that presidential and vice-presidential candidates
gain “a majority of the whole number of Electors appointed” in order to win an election. With a total
of 538 electors representing the 50 states and the District of Columbia, 270 electoral votes is the
“magic number,” the arithmetic majority necessary to win the presidency.
What would happen if no candidate won a majority of electoral votes? In these circumstances, the
12
the Amendment also provides that the House of Representatives would elect the President, and
the Senate would elect the Vice President, in a procedure known as “contingent election.”
The contingent election has been implemented twice in the nation’s history under the 12th
Amendment: first, to elect the President in 1825, and second, the Vice President in 1837.
In a contingent election, the House would choose among the three candidates who received the
most electoral votes. Each state, regardless of population, casts a single vote for President in a
contingent election. Representatives of states with two or more Representatives would therefore
need to conduct an internal poll within their state delegation to decide which candidate would
receive the state’s single vote. A majority of state votes, 26 or more, is required to elect, and the
House must vote “immediately” and “by ballot.” Additional precedents exist from 1825, but they
would not be binding on the House in a contemporary election. In a contingent election, the
Senate elects the Vice President, choosing one of the two candidates who received the most
electoral votes. Each Senator casts a single vote, and the votes of a majority of the whole Senate,
51 or more, are necessary to elect. The District of Columbia, which is not a state, would not
participate in a contingent election, despite the fact that it casts three electoral votes.
Although contingent election has been implemented only once each for President and Vice
President since the 12th Amendment was ratified, the failure to win an electoral college majority is
a potential outcome in any presidential election. Some examples include an election closely
contested by two major candidates, one in which one or more third-party or independent
candidacies might win a portion of the electoral vote, or one involving defections by a significant
number of so-called “faithless” electors.
A contingent election would be conducted by a newly elected Congress, immediately following
the joint congressional session that counts and certifies electoral votes. This session is set by law
for January 6 of the year following the presidential election, but is occasionally rescheduled. If
the House is unable to elect a President by the January 20 inauguration day, the 20th Amendment
provides that the Vice President-elect would act as President until the impasse is resolved. If
neither a President nor Vice President has been chosen by inauguration day, the Presidential
Succession Act applies, under which the Speaker of the House of Representatives, the President
pro tempore of the Senate, or a Cabinet officer, in that order, would act as President until a
President or Vice President qualifies.
A contingent election would require Congress to consider and discharge functions of great
constitutional significance, which could be complicated by a protracted and contentious political
struggle that might stem from an electoral college deadlock. This report provides an examination
of constitutional requirements and historical precedents associated with the contingent election. It
also identifies and evaluates contemporary issues that might emerge in the modern context.
So there you go you have every information available of whether the POTUS can be elected using the 12th amendment in this year’s elections.
