Old law could leave 2020 presidential race in stalemate

Todd Ruger, CQ-Roll Call on

Published in Political News

WASHINGTON -- The nation's 133-year-old law for picking a president has a provision that has never been needed to settle a disputed election, since it deals with a situation that would only happen after a cascade of seemingly improbable events.

Then again, this is 2020, a year that feels cursed with historic worsts.

And election law experts warn that Congress would be wise to clarify the provision before the country potentially faces this worst-case scenario: A full-fledged constitutional crisis if there is no clear Electoral College winner on Inauguration Day on Jan. 20.

"If you're asking the question what should Congress do to prepare for November, that would be on the top of the list," said Edward Foley, a constitutional law professor and director of Ohio State University's election law program, who has written on the provision and hosted a recent online expert roundtable discussion on it.

The situation calls more for a dose of procedural preparation than panic. The odds of that worst-case scenario seem incredibly low.

Yet this year already has seen the third presidential impeachment trial in United States history, the worst pandemic in more than a century, and deep partisan divisions about the country's future. President Donald Trump has more than foreshadowed possible disputes to the legitimacy of November election results because of a heavy shift to mail-in ballots during the health crisis.


It's a swirl of ingredients that some election law experts fear could -- as unlikely as it may seem -- make Section 15 of the Electoral Count Act of 1887 relevant again.

That provision -- a paragraph a political scientist called "almost unintelligible" in the year after it was passed -- spells out how Congress should count Electoral College votes.

The problems start if a state submits two different election results and the House and Senate clash on which results should be tallied. More later on all the dominoes that would have to fall for that to happen in 2020.

But if that does happen, there are conflicting interpretations of what the law requires Congress to do, Foley said. It's an ambiguity that he calls the Achilles' heel of the Electoral College system and Congress' role in counting votes.


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