Here’s a thought exercise. What would have happened if Donald Trump had won 42,921 additional votes — 10,458 in Arizona, 11,780 in Georgia, 20,683 in Wisconsin? That would have given him 269 electoral votes and would have left Joe Biden with 269 electoral votes. Neither would have had the 270 electoral votes needed to be elected president.
The Constitution tells us that the election would then go to the House of Representatives, with each state’s delegation having one vote. The first candidate to win 26 states (in 1825, the only time this has happened, it took multiple ballots before John Quincy Adams won the required majority of the states) is elected president.
In the next Congress, which takes office on Jan. 3, Democrats will have a majority of House members in 20 states, Republicans will have a majority in 27 states, and three states — Michigan, Minnesota, Pennsylvania — will have equally divided delegations. Presumably, this House would have elected Donald Trump as president, even though he failed to win the popular vote (Biden had a majority, not just a plurality as Hillary Clinton had in 2016), even though he failed to win a majority of electoral votes, and even though Republicans do not have a majority in the House of Representatives.
But maybe not. Iowa election authorities have ruled that Republican Mariannette Miller-Meeks has been elected in the 2nd District by exactly six votes. Democrat Rita Hart has appealed that to the full House, which, under the Constitution, is the final judge and can, by majority vote, seat Hart rather than Miller-Meeks. There’s a fairly recent precedent for this, within living memory of some House members: In 1985, a Democratic-majority House refused to seat the Republican certified as the winner in Indiana’s 8th District and seated the Democrat instead. This was done fairly routinely, by both parties, in the 19th century (future President William McKinley was the victim in one case).
Seating Hart would make Iowa’s House delegation equally divided between the parties, reducing the number of Republican House delegations to 26. The Democratic majority could try to refuse to seat another Republican (this would require some extensive and even more dubious manipulation), or it could try to persuade one or more similarly placed House Republicans not to vote for Trump.
If there is no majority of state House delegations for a candidate, the vice president who is chosen by a majority of senators would become president. But it’s not clear who that would be. The new Senate terms begin on Jan. 3, and so David Perdue, whose six-year term expires that day and who faces a runoff election two days later on Jan. 5, will not be a senator on Jan. 6 unless he wins the runoff and is certified as having done so and seated by the Senate on that day. Kelly Loeffler also is up in the runoff election, but since she was appointed to fill the remainder of the unexpired term of Johnny Isakson, she will presumably remain a senator unless or until her runoff opponent, Raphael Warnock, is elected and sworn in by the Senate.
Assuming that’s correct, there are likely to be 51 Republican senators on Jan. 6, but perhaps not for long. In the race for vice president, presumably, the Democratic senators will vote for Kamala Harris and the Republicans will vote for Mike Pence. So Pence would lead Harris 51-48. But if the two Georgia Democrats are elected and seated, the vote would be 50-50. The 12th Amendment requires the vice president to be elected by “the whole number of all senators” and says nothing about the vice president (who is not a senator) voting to break ties. So if the Electoral College is deadlocked 269-269. there is a possibility that the United States would end up next Jan. 20 without a president and without a vice president. That is unless statutory law takes over and makes Speaker Nancy Pelosi, the next in line for the office, the next president.
That also assumes that, in our scenario, Pelosi wins the 218 votes needed to become speaker. Currently, there are 222 Democrats who will become members of the next Congress on Jan. 3. If five of them refuse to vote for Pelosi — something many have at least talked about — she won’t become speaker, and perhaps no one else will either.
You don’t have to be a partisan Democrat to consider the possibility of Trump being elected by the House as an unfortunate way to choose a president.
And you don’t have to be a partisan Republican to consider the possibility of ending up without a 12th Amendment-elected president or with a Democratic House speaker as president to believe that the scenarios outlined above are unfortunate ways to choose a president.
The reason these scenarios are possible is that we have an even number of members of the Electoral College. It’s a defect that National Review’s Dan McLaughlin identified in a tweet: “Underrated problem of the 23rd Amendment is that adding DC’s 3 electors made the Electoral College an even number, when it had been odd until then.” That’s because the Senate has an even number of members — something that can’t be changed unless a state willingly gives up Senate representation, according to Article 5 of the Constitution — and the House has an odd number of members.
“Seems like the easy way to fix that,” tweets the Washington Post’s Dave Weigel, “would be increase the House to 437 members—one for DC, one more for whatever state was closest to getting one more after the census.” But that would require an amendment to the Constitution. The District of Columbia is less populous than multiple states that will have only one House member after the 2020 census (Rhode Island, Delaware, South Dakota, North Dakota, and Alaska). Why should it have four electoral votes, and each of them have only three? More important, the 23rd Amendment provides that the district shall have three electoral votes and “in no event more than the least populous state.” So giving Washington, D.C., four electoral votes would require another amendment to the Constitution.
A much easier solution would be for Congress to increase (or decrease) the number of House members so that it is an even number. That’s something Congress can do; the number of House members has been set by statute and has been held constant since the 1910 census at 435, except when Alaska and Hawaii gained single seats upon their admission to the Union in 1959-60. All Congress has to do is to substitute an even number for 435 in the present legislation, which provides for automatic apportionment of members among the states by an arithmetic formula applied to the final returns of the decennial census.
As it happens, this could be done pretty easily in the present partisan configuration, in which Democrats seem at far more risk of losing the presidency than Republicans in the event of a 269-269 tie. Democrats have a majority in the House, and many or most Republicans there might support an even number of seats to avoid a nightmare scenario. The Senate historically has deferred to the House’s decision as to the number of its members, and from a crass political point of view, senators might see smaller House districts as giving House members less of an advantage in challenging them.
There are arguments in any case for increasing the House membership, the primary one being that it would make representatives closer to the people. The average House district will have about 763,000 residents next year, almost 4 times the 211,000 when the 435 number was legislated more than a hundred years ago. One drawback is that a House with an even number of seats could face partisan deadlock. But scrambling to construct a power-sharing arrangement is a much less daunting problem than a 269-269 tie could produce.
Senators negotiated a power-sharing agreement when the upper house was divided 50-50 for the first six months of 2001, and such arrangements have been made at the state level as well. Altogether, 28 state upper houses and 33 state lower houses have an even number of members, and life goes on. So let’s hear it for 436 — or 870, or some even number in between!
