John Yoo: Trump and Biden could face dramatic post-election battle — here’s what might happen
by John Yoo · Fox NewsElection Day is Nov. 3. But if the vote is close, we might not know who wins control of the White House until December or even January. Multiple, complex scenarios could play out before either Donald Trump or Joe Biden takes the oath of office Jan. 20.
Both President Trump and Democratic presidential nominee Biden would be wise to start studying George W. Bush’s victory in the 2000 Florida recount. They’ll need to learn how to wage a post-election battle if uncertainty and chaos engulf the Nov. 3 election.
As in 2000, the outcome of the presidential election this year could remain undecided well past Election Day. In Florida two decades ago the uncertainty arose because of the closeness of the election and the inconsistent standards used by different counties to run a recount. Bush ultimately won Florida by a razor-thin margin of 537 votes.
Only the intervention of the U.S. Supreme Court stopped the Florida courts from ordering prolonged and widespread recounts that threatened to prevent the state from casting any electoral votes at all.
Neither Bush nor the Democratic nominee — then-Vice President Al Gore — could win a majority of the Electoral College without Florida. If Florida had failed to award its electoral votes at all, no one would have prevailed in the Electoral College.
Two decades later, the presidential election this year could make Florida look like spring training compared to the World Series.
COVID-19 and state lockdowns might hamper access to polling places in the upcoming election. Mail-in voting will be more widespread than ever due to the pandemic and might suffer from fraud. Foreign governments might try to hack into state electoral systems.
In addition, votes might prove so close that reliable and accurate recounts cannot occur in time. Under the Constitution, Congress sets the date of the election — Nov. 3 this year. The Constitution also establishes the deadline for states to send in their electoral votes, which is Dec. 14 this year.
But, as in Florida 2000, states with close margins might order inconsistent recounts, undergo a blizzard of litigation from both parties, and suffer political upheaval that could prevent them from sending their votes in on time.
The Constitution requires the winner of the presidential election to garner a majority of the 538 votes in the Electoral College. Hillary Clinton won about 3 million more popular votes than Trump four years ago, but Trump won a clear Electoral College majority of 306-232.
But if the election is close this year — as many prognosticators predict — and a few battleground states fail to report their votes on time, then neither President Trump nor former Vice President Biden might be able to assemble the required 270 electoral votes needed to become president.
If such a stalemate occurs, a constitutional fail-safe would throw the election into the House of Representatives. Our nation barely avoided that outcome 20 years ago and has only used it twice in our history.
But even though the House will likely remain under Democratic control after the election, the Constitution’s process for resolving disputed elections should still bode well for Trump’s reelection.
How could control of the White House end up in the domain of House Speaker Nancy Pelosi, D-Calif.? It depends on the decisions made 230 years ago.
America’s founders rejected the idea that Congress should pick the president, which they believed would rob the chief executive of independence, responsibility and energy. They wanted the American people to have the primary hand in choosing the president. But the founders wanted the choice mediated through the states, because they also feared direct democracy.
In a compromise that binds us still, the founders allowed state legislatures to pick electors for the president, based on their number of senators and members of the House combined.
The state-based organization of the Electoral College and its slight advantage for states with small populations (which receive two extra Electoral College votes no matter their population, since every state has two senators) underscore the founders’ desire to give federalism a say in the choice of the president.
The founders went further in designing their constitutional backup. They realized that the Electoral College might yield no majority winner. They expected that regions might support their favorite sons instead.
In Article II of the Constitution, as modified by the 12th Amendment, the framers established that if no one won a majority of Electoral College votes, the House would pick the president from the top three vote-getters.
But Pelosi and the Democrats — assuming that they hold onto their majority in the House — still won’t pick the president. Rather than allowing a simple majority vote in the House to select the president, the Constitution requires that the House choose the president by voting as state delegations. That means that California (represented by 53 House members) and Delaware (represented by 1 House member) would each get a single vote to pick the president.
Once again, the founders decided to amplify the voice of the states in the presidential selection process, rather than defaulting to pure democracy.
And that is how Trump could win the presidency again. If the Electoral College votes yield no majority winner Dec. 14, the Constitution sends the vote to the House.
Thanks to Republican advantages among the states, rather than the cities, the current balance of state delegations in the House favors Republicans, with 26 delegations controlled by Republicans and 23 controlled by Democrats (Pennsylvania is tied). If today’s House chose the president by voting by state delegations, Trump would win.
But there is one more twist. The 20th Amendment to the Constitution seats a new Congress on Jan. 3, but does not begin the term of a new president until noon on Jan. 20. That means the new House chosen in the November election, rather than the current House, would choose the president if neither Trump nor Biden wins an Electoral College majority.
Even though Republicans currently have a majority of House delegations, Democrats have narrowed the gap. After the 2016 elections, Republicans had held a 32-17 advantage in House delegations. If Democrats can win one more congressional seat in Pennsylvania and then flip one more delegation, they could achieve a 25-25 tie in the House in January.
Under this scenario, the election would require political bargaining of the most extreme kind for the House to resolve a disputed presidential election.
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But suppose the House can’t agree, which could well be likely given the polarization of our politics. The Constitution even provides for this.
If the House splits 25-25 between Trump and Biden, then the 20th Amendment elevates the vice president-elect to the presidency. Under the 20th Amendment, when the Electoral College fails, the Senate chooses the vice president.
But unlike the House procedure, the senators each have an individual vote, meaning that under the current balance in the upper chamber, 53 Republicans would choose Mike Pence to effectively become the next president.
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But one-third of the seats in the Senate will be filled in the November election, meaning control of the chamber could flip to the Democrats. Under this scenario, Democratic vice presidential nominee Sen. Kamala Harris, D-Calif., could wind up as our next president and make history as the first woman to hold the office in American history.
All of this is as complicated as it sounds. Election Day could be just the start of a new phase in a prolonged fight for control of the White House, rather than the conclusion of a long campaign.