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Avoid Potential Constitutional Crisis and Vote
By Miriam Edelman

The United States is in the midst of potentially the most important elections ever. Positions up for election include the presidency, 35 of the 100 Senate seats, all 435 House seats, 11 governorships, and many other state and local posts. State seats are especially important because state officials will draw district maps that govern the next decade’s elections.

As is always the case, it is especially crucial for social workers to vote. Voting might be the easiest way social workers can help society at the macro level.

The United States might find itself emerged in a major constitutional crisis. Due to the current coronavirus pandemic, many Americans plan to vote by mail, not in person. Without substantial evidence, President Donald Trump, who voted by mail earlier this year, has disparaged the practice. Two-thirds of his supporters are planning to vote in person on Election Day. It is possible that on Election Night, Trump could be ahead and declare victory. Meanwhile, there could be delays with counting mail-in-votes. However, as mail-in votes are counted, former Vice President Joe Biden and other Democrats could receive more votes.

As The Atlantic reported recently, the Trump campaign might “bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority” on the basis of major fraud. Democratic governors could certify the official count and assert that state legislatures could not choose electors. Lawsuits could continue to happen and end with the conservative-majority U.S. Supreme Court handing the election to Trump, perhaps violating precedent as it had done in the 2000 Bush v. Gore case. Trump already stated his wish to replace Cornell University and Columbia University alumna Justice Ruth Bader Ginsburg by the November 3 election because he thinks that the Supreme Court will decide the election. Congress, which certifies election results, might find many of the electoral votes to be problematic and thus be forced to choose the next president.

According to the 12th Amendment to the U.S. Constitution of 1804, if no presidential candidate receives the majority of electoral votes or if the Electoral College remains deadlocked, the House selects the president. Each state House delegation would have one vote. According to the Constitution, if the Electoral College vote for vice president results in a tie or a deadlock, the Senate would vote for vice president. Each Senator would have one vote.

If the House selects the president, history would repeat itself. The House chose the winners of two presidential elections: 1800 and 1824. In 1801, Thomas Jefferson and Aaron Burr tied, each with 73 electoral votes. The House chose Jefferson. In 1825, Andrew Jackson won a plurality of electoral votes (99 votes). The House selected runner-up John Quincy Adams, who had 85 electoral votes. In 1824, John C. Calhoun was the running mate of both Quincy Adams and Jackson. Since he achieved a majority of electoral votes, the Senate did not vote for vice president. In 1837, the Senate chose Richard Johnson to be Martin Van Buren’s vice president.

Even assuming that Democrats maintain an overall majority in the House, it is doubtful they will win majorities in most state delegations so as to be able to elect Joe Biden as president should the choice go to the House. Most likely, Democrats will maintain their House majority. However, a House majority does not correlate with the majority of state House delegations. Currently, Democrats have a 231 to 199 majority in the House, with four vacancies and Justin Amash (I-MI).

However, as Harry Enten said, Republicans hold a majority of House delegations: 26 to 22, with two tied/unclear (two). Thus, today’s Democrat-controlled House most likely would elect Trump. The latter partisan divide is partly because of some lopsided House delegations. If neither presidential candidate gets the most electoral votes, the House will choose the new president, with each state voting as a bloc and casting one vote. Thus, the choice of the next president could depend on which party has the majority in a majority of state delegations.

Similarly, if no running mate wins a majority in the Electoral College, the choice of the next vice president will turn on which party controls the new Senate. What if there were a 50-50 tie? Could current Vice President Mike Pence, who has broken the most number of tied Senate votes since Schuyler Colfax, Ulysses S. Grant’s second in command, break the deadlock and elect himself as vice president (even if the House had elected Biden to be president)?

The final result of the 2020 presidential election could be President Joe Biden (chosen by the House) and Vice President Pence (chosen by the Senate). Then again, the Democrats could take control of the Senate and elect Democratic vice president nominee U.S. Senator Kamala Harris (D-CA) as vice president even if the House chose Trump as president. Thus, there could be a Trump-Harris administration. These possibilities seem far-fetched, but few predicted that Trump would be president.

A cross-party administration harkens back to the nation’s earliest days. Initially, the top electoral vote-getter became president, and the runner-up became vice president. The 1796 election denoted the start of the United States’s political party system. Federalist John Adams defeated Democrat-Republican Jefferson, 71 to 68 electoral votes. As a result, Adams became president, and Jefferson became vice president. During this difficult cross-party administration, Federalists and Democrat-Republicans clashed. Adams’ and Jefferson’s rivalry came out in the 1800 campaign. The 1796 and 1800 elections helped lead to the 12th Amendment. Since Jefferson and Burr were Democrat-Republicans, there was not a cross-party administration from the 1800 election. Then, rules changed and created the current system of presidential and vice presidential candidates running together. However, due to a constitutional quirk, the administration can be composed of a president of one ticket and a vice president of another ticket.The 1864 elections caused a cross-party administration of President Abraham Lincoln (Republican) and Vice President Andrew Johnson (Democrat), but these two men ran on the same National Union Party ticket in 1864.

If Trump loses the election, there could be mayhem. On September 23, Trump refused to commit to a peaceful transfer of power. Trump’s term ends at noon on January 20, 2021. At that time, he would not be president, and Mike Pence would no longer be vice president. Would Speaker of the House Nancy Pelosi (D-CA), assuming she remains speaker, become acting president since she is right after the vice president in the Presidential Order of Succession? Would the Constitution be amended again?

Pay attention to the next Congress’ House state delegations and Senate breakdown. This result could be crucial to determining the 2020 presidential election winner. When voting this November, vote for president and in your congressional elections. Encourage your colleagues and networks to vote. Don’t be afraid. Your votes could change U.S. history. They could cause decisive victories and avoid potential constitutional catastrophes. They could help your clients.

— Native Washingtonian Miriam Edelman graduated from Barnard College, Columbia University, with majors in political science and urban studies and a concentration in history. For almost five years, she worked on Capitol Hill in personal offices and on committees in the U.S. Senate and the U.S. House of Representatives. In May 2012, she graduated with a master’s in public administration from Cornell University, where she was inducted into Pi Alpha Alpha, the national honorary society for public administration. Primarily for her work founding the Jade Moore Forum on American Politics in memory of her late friend, Edelman was one of two graduate student recipients of the Cornell-wide Distinguished Leadership Award. She also has a master’s of science in social work (focusing on policy) from Columbia University. She aims to continue her career in public service.