Nancy Pelosi has reportedly begun rallying Democrats in the event the House is called upon to decide the 2020 presidential election.

The House is constitutionally provided the privilege of selecting the president in the unlikely event of an Electoral College tie.  A “contingent election” such as this has not happened since 1824, and happened only once before that in 1800, so there is some confusion about what it actually entails.

For example, Pelosi and Politico (see below) seem to be under the impression that the new House, elected at the same time as the president and sworn in the week before the presidential inauguration, would make this decision; however, the Constitution states that the choice shall be made “immediately,” i.e. in the House at the time of the Electoral College tie, not after the new Congress is sworn in months later.

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.  [emphasis mine]

Of note, both the 1800 and 1824 contingent elections were decided by the outgoing Houses, those of the 6th and 18th Congresses, respectively.

The obvious reason Pelosi is pushing for the new Congress to make the decision is that she hopes to gain the needed state delegations to permit a Democrat win.  In the current House, Democrats have 22 state delegations to the Republicans’ 26.

This argument would, naturally, be moot if there is no change to—or if Republicans gain even more—state delegations in November.

Politico reports:

Speaker Nancy Pelosi has begun mobilizing Democrats for the possibility that neither Joe Biden nor President Donald Trump will win an outright Electoral College victory, a once-in-a-century phenomenon that would send the fate of the presidency to the House of Representatives to decide.

Under that scenario . . . every state’s delegation gets a single vote. Who receives that vote is determined by an internal tally of each lawmaker in the delegation. This means the presidency may not be decided by the party that controls the House itself but by the one that controls more state delegations in the chamber. And right now, Republicans control 26 delegations to Democrats’ 22, with Pennsylvania tied and Michigan a 7-6 plurality for Democrats, with a 14th seat held by independent Justin Amash.

. . . . Pelosi, in a Sunday letter to House Democrats, urged them to consider whether the House might be pulled into deciding who is president when determining where to focus resources on winning seats in November. This could lead to more concerted efforts by Democrats to win in states such as Montana and Alaska — typically Republican turf but where Democrats have been competitive statewide. In these states, Democratic victories could flip an entire delegation with a single upset House victory.

“The Constitution says that a candidate must receive a majority of the state delegations to win,” Pelosi wrote. “We must achieve that majority of delegations or keep the Republicans from doing so.”

CBS News has more:

“Instead of giving every member of Congress a vote, the 12th Amendment gives each state one vote, which is determined by a vote of the state’s delegation,” Pelosi, of California, said to her fellow House Democrats. “In other words, how many state delegations the Democrats win in this upcoming election could determine who our next president is.”

President Trump, by contrast, appears to be operating under the (to me, seemingly valid) interpretation that it would be the current/outgoing, not the future, House that makes the decision.

The New York Post reports:

Meanwhile, Trump talked about the possibility of the House deciding the election during a campaign rally in Pennsylvania on Saturday.

“And I don’t want to end up in the Supreme Court and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress — does everyone understand that?” Trump said.

“I think it’s 26 to 22 or something because it’s counted one vote per state, so we actually have an advantage. Oh, they’re going to be thrilled to hear that.”

That said, the currently scheduled dates of the Electoral College vote and related formalities in Congress do suggest that the House decision on the presidential election might not occur until after the new Congress convenes.

CBS News reports:

Presidential electors are scheduled to meet and cast their votes in their respective states December 14. On January 6, the Senate and House are set to assemble in a joint session of Congress to count the electoral votes and declare the election results.

The 20th Amendment requires the new Congress to convene at noon on January 3, unless the previous Congress passes a law changing the date.

This schedule, however, is set without consideration of a possible Electoral College tie, of historical precedent, nor of the Constitutional requirement that an “immediate” choice be made in such an event.

As an Electoral College tie seems very unlikely, Pelosi is probably—and cynically—attempting to get the Democrat base to turn out for House Democrats by dangling the (im)possibility of their deciding the presidential election in the House sometime after the new Congress convenes.

 

 
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