Just how might the outcome of the US presidential election be yet changed? I do not refer to the lawsuits now pending: I write about the more subtle pathways through the thicket of American constitutional rules and legislation that might lead not necessarily to a win by (still) President Donald Trump, but to unusual, even unique, outcomes that will lead to uncertain, inconclusive outcomes.
First, be clear about the present state of affairs. Joe Biden is not currently the president-elect. That status will only be conferred after the Electoral College meets on December 14 and awards at least 270 of its total of 538 votes (100, one for each senator, plus 435, one for each member of the “people’s” House of Representatives, plus three for the District of Columbia) to him.
(By the way, the time between November 3, election day, and December 14 is given over to deciding upon and settling disagreements at the level of the 50 states, where governors and political party operatives have been discussing exactly who the state-appointed members of the College shall be. This is a time of potential trouble.)
Even then, president-elect status is not earned until January 6, when the president of the Senate and the secretary of the House officially open the missive sent by the electors of the College, reporting and making thus public and official the outcome of their vote. During the interval between that moment and January 20, at which time the president-elect is inaugurated and takes the oath of office and therefore becomes president, Trump remains in office.
Return to the Electoral College decision time, and consider possible but unlikely problematic cases. If enough members of the Electoral College are “unfaithful,” and do not vote as they are now pledged and expected to do, the magic 270 votes may not go to Biden. But they need not go to Trump.
Now go back to January 6, when a Joint Session of the newly elected Congress meets to hear the presiding (holding the gavel) president of the Senate announce the vote of the Electoral College, and, in the absence of problems, announce the name of the next president of the United States. (Trump is still in office until January 20, inauguration day.)
Imagine that somehow Trump’s lawsuits have gone his way, or that for some extraordinary reason, the letter from the College will show 270 or more votes for Trump, or some other outcome unfavorable to Biden.
What then? If the message from the Electoral College to the new Congress is not conclusive, the election “goes into” the House of Representatives, where each of the 50 states has but one vote, and where the Speaker of the House, likely Nancy Pelosi, is in control of the gavel (she decides the course of business, and could refuse to open the House meeting at all).
She will want to put a stick in the wheels, since, when each state has but one vote, that vote will be determined by the political party having the majority of each state’s members of the whole Congress, House plus Senate.
The balance of that division is now, and is likely to remain, in favor of Republicans, 26 to 23, with one tie. As an especially astute constitutional expert and friend of mine has privately noted, Pelosi, who of course will know these (for her) unwelcome facts, may refuse to convene the House session, or by way of some other subterfuge not allow the vote to go in favor of Trump. Since such action on her part will be unacceptable to about 70 million Americans, there will be hell to pay.
As if the problems listed above are not enough, even if none such issues arise, since Biden’s health does not appear vigorous, and because his age makes him vulnerable to Covid-19, we should consider the possibility of his becoming, some time before the oath of office is administered, unable to undertake the job.
Does it make any sense at all to consider these unlikely events? Yes, because 2020 is an extraordinary year. Consider the fact that Trump is actively undertaking legal actions that, if successful, could lead some members of the Electoral College to become “unfaithful.”
Remember that there are accusations against Biden’s son that suggest that Joe Biden himself profited from their unethical (or at least unwise) financial and consulting relationships with China and Ukraine. Recall that Biden’s brother Jim conducted expensive but lucrative construction projects in Iraq, despite Jim Biden’s lack of experience in such international ventures.
Finally, know that Trump earned at least 70 million votes (and says there are more to come) and remember the enthusiasm with which his rally crowds chanted “we love you” during the last few days of his whirlwind campaign’s closing. To be fair, also remind yourself of the passionate resentment that Trump’s opponents expressed against him, right from (and even before) the beginning of his term in office.
Before those passions and enthusiasms can be cooled and resolved, every possible question concerning the election should be thought about and addressed.
It won’t be easy or quick.
Tom Velk is a libertarian-leaning American economist who teaches and lives in Montreal, Canada. He is the chairman of the North American Studies program at McGill University and a professor in that university’s Economics Department.