In 2020, many Americans called on former Vice President Mike Pence to respect the will of the electorate and confirm Joseph Biden as the next President of the United States. Fortunately for America, he did. Despite mounting calls from former President Trump to reject the certification of electoral votes and ignore the clear language of the Constitution of the United States, Vice President Pence — with chants of “hang Mike Pence” echoing in the winds — upheld our democracy and recognized Biden as the 46th President of the United States. He honored his oath to the Constitution. There were other Republicans who also put country over party in the Senate, and we respect what they did.
Since then, Congress has acted. Recognizing the danger of relying on the integrity of one person to safeguard our elections, Congress passed a bipartisan bill to close the purported loopholes that Trump tried to use to overturn the results.
That bill is the Electoral Count Reform and Presidential Transition Improvement Act (ECRA). The ECRA acts as a stopgap to prevent what happened in 2020. Among other changes, it makes clear that the Vice President’s role in counting electoral votes is purely ministerial (despite it being clear in the Constitution anyway); no longer can a rogue Vice President throw out duly certified electoral votes in favor of the losing candidate. The ECRA also tries to shut down any effort by election deniers to frustrate the counting of the votes. It provides that the Governor of each state certifies the electoral votes for that state, not the legislature or anyone else, with the goal of avoiding the possibility of fake electors. It also provides a process for speedy court challenges if an election board or other state entity tries to delay or frustrate the certification of votes and makes it harder for Congress to throw out electoral votes on its own initiative. The ECRA is a big step forward. But it is not perfect.
First, as Neal Katyal, one of the nation’s foremost legal scholars, has recently identified, there is a long list of actions that election deniers might undertake to withhold, frustrate, or delay electoral votes from any of the swing states. In a very tight election, if just one state withheld electoral votes, it could keep a candidate from getting the 270 needed to win the presidency.
Second, there is the possibility that each candidate only receives 269 electoral votes — for instance, if Harris wins Arizona, Nevada, Michigan, Wisconsin, and a single electoral vote in Nebraska, while Trump wins Pennsylvania and Georgia — thereby denying the majority to either candidate.
Any of these scenarios, and other versions thereof, could trigger a constitutional crisis.
Here’s how that could happen. The 12th Amendment of the U.S. Constitution provides that, if no presidential candidate receives the votes of a majority of electors (270 electors), “the House of Representatives shall choose immediately, by ballot, the President” with “the representation from each state having one vote.” That means that if neither candidate gets the necessary votes, the House picks the President, with each state delegation getting one vote — giving the edge to the party that controls more state delegations. This determination would be made by the newly elected House, to be seated on January 3. Right now, the party that controls the most state delegations is the Republicans, who control 26 out of 50 state delegations. And polls show that they’re likely to keep that advantage, at least on a state delegation basis, in the November elections.
The 12th Amendment also provides that if no Vice Presidential candidate obtains a majority, the newly elected Senate will choose the Vice President (from the top two electoral vote-getters running for Vice President). Unlike the House, the Senate currently has an, albeit small, Democratic majority, with current Vice President Kamala Harris as the tie-breaking vote if needed.
America could face a situation where the House chooses Trump as President, and — if the Democrats retain their Senate majority — the Senate chooses Tim Walz to become the Vice President. And if the Democrats lose their Senate majority, then Trump is President and Vance is Vice President. When it comes to frustrating electoral votes, there is a method to the madness of election deniers.
We should not overlook the fact that lots of wild cards could come into play. There could be a mess in the House and the Senate because of the required quorums and filibusters. If the House fails to decide the presidency by inauguration day, then under the 12th Amendment and the 20th Amendment, the newly elected Vice President, as determined by the Senate, shall serve as acting President. If the newly elected Senate also fails to designate a Vice President (in other words, both chambers are tied up in knots, and we have neither a new President nor a new Vice President), then the Speaker of the House of Representatives — which, depending on the outcome of the upcoming election and the House’s ability to timely designate a Speaker, could be Representatives Michael Johnson or Hakeem Jeffries — shall serve as acting President until Congress acts. If the House fails to choose a Speaker by inauguration day, then the Senate Pro Tempore shall serve as acting President.
In fact, similar wild cards have popped up throughout our history. In 1796, the electoral college certified John Adams of the Federalist Party as President and Thomas Jefferson, the nominee for the opposing Democratic-Republican party, as Vice President because Jefferson had the second largest number of electoral votes. And so, for four years, we did have a President from one party and a Vice President from another one. It did not work out so well, especially when it came to foreign policy messages.
In the following election, the election of 1800, Jefferson, the presidential nominee for the Democratic-Republican party, received the same number of electoral votes as Aaron Burr, the vice presidential nominee of the same party. With a tie in electoral votes, it fell to the House to determine who would be President: Jefferson or Burr? Even though Burr ran for Vice President, he refused to step aside in favor of the Presidential candidate from his own party! In the House neither candidate was able to muster a majority.
Alexander Hamilton stepped in and broke the stalemate in the House by endorsing Jefferson, his primary rival on all policy issues. Hamilton famously said that Jefferson was “by far not so dangerous a man” as Burr, because, while Jefferson professed principles that Hamilton disagreed with, Burr was devoid of any principles. In other words, Hamilton placed country over party. Burr returned the favor by murdering Hamilton in the infamous 1804 duel.
Following these contested elections (1796 and 1800), Congress and state legislatures ratified the 12th Amendment in 1804, which provided separate electoral voting procedures for President and Vice President. But even after the passage of the 12th Amendment, the drama continued.
In 1824, no candidate mustered a majority, but Andrew Jackson had a very strong electoral lead over all other candidates. Nonetheless, the House selected John Quincy Adams because Henry Clay, another presidential candidate, threw his electoral votes to Adams in exchange for his appointment as Secretary of State. Jackson famously called it the “Corrupt Bargain.” But it would not be the last election with a “corrupt bargain.”
In 1836, Martin Van Buren obtained enough electoral votes to be certified as President, while his Vice President, Richard Johnson, did not, in part because southerners opposed Johnson’s interracial common-law marriage with a slave. For the only time in American history, the vice presidential election was kicked to the Senate pursuant to the 12th Amendment, where Johnson prevailed.
Finally, in 1876, Democrat Samuel Tilden of New York technically defeated Republican Rutherford B. Hayes. However, there was fraud and violence against Black Republicans, and 20 electoral votes were disputed by Hayes. Facing an unprecedented constitutional crisis, Congress quickly passed a law forming a 15-member congressional electoral commission to settle the result. The stalemate was eventually resolved by the “Corrupt Bargain of 1877”: the Democrats accepted Hayes’ election, and the Republicans agreed to end Federal Reconstruction, marking the beginning of the Jim Crow era that still haunts our Republic to this day.
Absent a legitimate 269-269 tie, there are not supposed to be any wildcards in 2024. No such thing is supposed to happen. At the end of the day, it will be everyday Americans, election workers, governors, judges, and members of Congress who will have to decide to do the right thing, regardless of party affiliation. That is what Hamilton told us to do. Democracy hangs in the balance.
John Monsky is a historian and creator of the American History Unbound Series. His production Eyes of the World, about four friends — Lee Miller, Ernest Hemingway, JD Salinger, and Robert Capa — in the middle of WW2, will air on PBS Stations nationwide beginning November 1. The event will also be available for streaming beginning November 1 on PBS.org and the PBS App.
