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October 12, 2020 - Democrats and Republicans are preparing for a potential crisis that could plunge the United States into constitutional turmoil -- a tussle for power in the weeks after Election Day.
Among the many issues debated by the framers of the U.S. Constitution in 1787 was how to elect the president. Some argued that Congress should pick the president; another group wanted a democratic popular vote by all Americans. Others asserted that 18th-century voters were not fully informed about the candidates, especially in rural areas.
Their compromise was the Electoral College. Each state has as many “electors” in the Electoral College as it has Representatives and Senators in Congress. There are currently 538 electors in the Electoral College; 270 votes are needed to win the presidential election.
Five times in history, presidential candidates have won the popular vote but lost in the Electoral College.
However, the framers of the constitution could foresee a scenario where no presidential candidate secures an Electoral College majority, or there is a deadlock. A so-called “contingent election” is held in Congress.
The House of Representatives is assigned to reflect the peoples’ will and select the president. The Senate chooses the vice president.
House Speaker, Nancy Pelosi, has urged Democrats to prepare for this scenario in which neither candidate attains the 270 electoral votes -- an Election Day meltdown that has happened twice before, in 1800 and 1824.
The 2020 election could also prove to be a historic cock-up. The results of the White House race might not be available on election night if battleground states have not finished counting mail-in ballots.
Five battlegrounds plan to allow ballots postmarked by Election Day, November 3, to arrive days later. In Michigan, the deadline is 14 days after the election.
In states where counting is completed on election night, very close margins are likely to prompt litigation. A scenario which led to the Supreme Court deciding the outcome of the 2000 contest between George W. Bush and Al Gore.
If the popular vote remains in dispute, or uncounted, in one or more states by December 14 -- the date when all electors in the Electoral College are required to vote -- Congress can step in.
The decision then goes to the new 117th Congress on January 6. Each of 50 state delegations in the House receives a single vote -- the candidate that wins 26 votes becomes president.
But if the House deadlocks at 25-25, the Senate’s choice for vice president becomes the acting president.
Suppose the Senate also deadlocks, and there is no president by Inauguration Day, January 20. In that case, the speaker of the House becomes acting president.