• Monthly
  • $25
  • $50
  • $100
  • $other
  • use PayPal
Support Our Annual Fund Drive!

We don’t run advertisements. We don’t take money from big foundations or any government entity. We are solely supported by you, our readers. Please, if you have the means, chip in to help us reach our annual fund drive goal. The sooner we do so, the sooner we can get back to business.

FacebookTwitterRedditEmail

Amid the Chaos of the 2020 Presidential Race, Four House Contests Could Determine the Result Based on the 12th Amendment

In the shadow of the 2020 presidential race, four House contests could determine the result under the Twelfth Amendment

To defeat Trump Biden has to win resoundingly—in the swing states that will decide the electoral college sweepstakes. If he wins only narrowly, Trump is poised to steal the election by challenging enough states’ results to prevent either candidate from getting 270 electors.

You may be wondering how Trump wins by failing to amass 270 electors himself. The answer is, with a lot of proto-fascist temerity and a little help from the Twelfth Amendment. The Twelfth Amendment prescribes that if no candidate reaches the magic 270 elector mark, the House of Representatives chooses the next president. Under the Twentieth Amendment, the newly elected Congress, not the outgoing Congress, casts the vote.

If you’ve been paying even scant attention to the news lately, you’ve observed Trump and his minions busily laying the groundwork to contest the election. Now picture how it plays out: by multiplying the Bush v. Gore debacle of 2000 by numerous legal challenges in several states. For hanging chads, substitute cries of mail-in ballot fraud.

If you’re in the camp that wants to evict Trump, you may be thinking: good; Democrats control the House, and they’re set to make gains in November.

On the contrary, the news for you is not good.

According to the arcane procedures of the Twelfth Amendment, each state’s slate of representatives in the House, i.e. its House delegation, casts a single, joint vote for one of the top three candidates in the presidential race. A simple majority of the states’ delegations decides the next president.

Currently, this math favors Republicans. They dominate 26 House delegations to Democrats’ 23. Pennsylvania’s delegation is tied at nine apiece. Tied delegation votes don’t sway the outcome.

Trump is uniquely positioned to exploit this framework because he is a megalomaniac mesmerized by Putin’s strongman example, not by any regard for the commoners he lords it over, or the institutions he’s mangled to enhance his power. The election is for him an annoying speed bump which he sees how to steer around. His battle against Democrats is asymmetric because he is willing to lay waste our so-called democratic institutions, including voting itself, to win. And he knows that the moment he leaves office, he will be swept away in a hurricane of legal troubles that may strip him of his fortune, and possibly his freedom. As a narcissist and a swindler, he has nothing to lose and everything to gain by bunkering himself in the White House, and scorching the surrounding landscape.

Since Biden is unlikely to win resoundingly, he is likely to lose. Compared to Trump’s base which practically deifies him, Biden’s campaign fuel is anti-Trumpism not personal popularity. The contest is already tight in the battleground states that will decide it. And it may tighten further as moderate Republicans get back on the Trump bus in the wake of Ruth Bader Ginsburg’s death, in Faustian servitude to Trump’s promise to keep packing the federal judiciary with conservative judges. (Side note: If Trump and Barr sincerely subscribed to the Federalist Society, states’ rights philosophy of the judges Trump has been elevating, they would not be insinuating national police into demonstrations to snatch and grab BLM protestors over the objections of local and state officials.)

Look for Biden to sputter in the upcoming debates, hobbled by his foot-in-mouth disease, his floppy attempt to be all things to all people, and a cringey tough guy act which makes him seem like a character Clint Eastwood would play, but badly. His number one argument is “c’mon, man,” and he literally interrupts himself half the time he starts to make a point, so Trump doesn’t have to.

Because Trump may burn everything down to win, the Democrats need a good insurance plan—a better one than Biden himself. Their best insurance is that if Trump doesn’t win outright, he has to process all of his chicanery through a single choke point, namely the House’s vote for president under the Twelfth Amendment.

Of the 26 House delegations Republicans currently control, four are potentially vulnerable to being flipped by Democrats in the outcomes of a single House race each. They are:

Alaska’s single district, where Independent Alyse Galvin is challenging Republican incumbent Don Young;

Montana’s single district, where Democrat Kathleen Williams is running against Republican Matt Rosendale and Green John Gibney for an open seat;

Pennsylvania’s 10th district, where Democrat Eugene DePasquale is challenging Republican incumbent Scott Perry; and

Florida’s 15th district, where Democrat Alan Cohn is running against Republican Scott Frankin for an open seat.

Reversing Florida’s Republican delegation majority would also depend on Democratic incumbent Debbie Mucarsel-Powell’s ability to fend off a formidable challenge by Republican Carlos Giménez in Florida’s 26th district.

Certainly, other scenarios could play out. Any number of Congressional races could result in upsets. The House delegations might not vote along party lines. If the House delegations tied—i.e. if 25 voted for Biden and 25 voted for Trump—this would throw the decision into the Senate, which would select the vice president, who would then become acting president—unless and until the House broke its tie vote. In the event the Senate also tied, Republicans might contend that Trump’s V.P., Mike Pence, could cast the tiebreaking vote and deal himself the presidency.

The contingencies are dizzying. Whatever happens, on December 14, 2020, each state’s electors will assemble to cast their votes for president and vice president. From there, the procedures get Byzantine. But on January 6, 2021, a special joint session of the new Congress will open the electors’ envelopes and count the votes. If those envelopes don’t contain 270 votes for Biden or Trump—because Trump’s lawyers prevented one or more governors from certifying their states’ election results, or just gave them legal cover to do so—the House of Representatives, voting by state delegation, will choose the next president and likely re-crown Donald Trump.

On the other hand, if voters can realign at least three of these state delegations, this might provide ultimate insurance against Trump’s scheme to steal the election.

The DNC—and every voter who wants to serve Trump his walking papers—would be wise to focus attention and resources on the four House races listed above. In the shadow of the presidential election, they could decide its actual outcome.

Ben Rosenfeld is a civil rights attorney in San Francisco.

FacebookTwitterRedditEmail