A Contingent Election Explained

Donald Trump’s Path To Staying In Power

Luuk Sips
Luuk Sips
Sep 19, 2020 · 4 min read
Photo by Darren Halstead on Unsplash

America is in the last stretch of a seemingly endless presidential campaign season featuring dramatically overcrowded debate stages on one side and a dangerously compliant party on the other. Polls sketch a bitter picture for the incumbent, Donald Trump, but if anything, the previous election proved polls are unreliable. Then again, this election is different from all those that came before it in a multitude of ways.

Mail-in voting is now a widespread reality, but the process is anything but easy. A saga of relentless attacks on the postal service casts doubt on the voting process. But perhaps that doubt is exactly what the President-in-panic wants. Should Joe Biden come out victorious at the end of a week (or more) of slow results, the signs are not good for a peaceful transfer of power.

For a president to be (re-)elected, (s)he needs no less than 270 electoral college votes. Even if the candidate receives more than any other, if the vote count is below 270, (s)he won’t be the outright president-elect. But what if no one can reach 270? This could be for a variety of reasons, such as a third candidate — Kanye West for example — or because a State’s results were invalidated and their electoral college votes could not be awarded.

“Invalidated?” I hear you ask. With the potentially close result in some swing States, such as Florida, Michigan, Wisconsin and Pennsylvania, the results are bound to be contested in court rooms across the nation. Here’s where it gets complicated: polls indicate Biden’s voters are more likely to vote by mail than Trump’s and Trump’s attacks on the postal service leave it underfunded and the safety of the whole system disputed. Successful challenges as to the validity of the mail-in ballots, as a result of this underfunding and alleged voter fraud, will likely be dragged to the Supreme Court, just like those contested Florida ballots in 2000.

After the passing away of Justice Ginsburg, the ideological balance in the Supreme Court hangs in the balance. The Supreme Court is already skewed towards conservatism — 5 justices nominated by Republicans and 3 by Democrats — and her possible replacement could skew it even further. Even if Chief Justice Roberts is more a centrist than ever, with only 8 Justices, his swing vote could only mean a deadlock.

It is well within the realm of possibilities that, surrounded by doubt on the validity of the ballot, the Supreme Court would order an investigation into the validity of the ballots. President Trump will make sure this investigation will last well beyond the convention of the electoral college. These results would not be able to be certified and will not come into play at that convention. In that case, it is unlikely either candidate obtains 270 votes.

This is where the Constitution comes in. In the event no candidate can muster the required majority, a so-called contingent election is held. Described by the 12th Amendment, this is a peculiarity in the electoral system. In the most basic of terms: The House of Representatives chooses the next president. There are two types of contingent elections, one in which the pre-election House chooses and one in which the post-election House chooses. The former if the incumbent is constitutionally allowed to run for another term and the latter in case the incumbent can not — a lame duck, as it is known. In our current election year, the President is running for re-election, so the current House decides.

So far, that sounds pretty good for Joseph Biden. The Democrats have a majority in the House, so that settles that, right? Not quite. The House does not vote per single seat, but per State instead. Each State has one vote and its representatives decide how that single vote is cast. Do note, Washington D.C. is not a State and can not vote in a contingent election. A candidate would need 26 votes to become the next president-elect.

This begs the question: how will the States vote? The convenient answer would be to look at the current division amongst party lines. The inconvenient answer is that we do not know. In States with small majorities of either party, a single Representative can make the difference. Individual Representatives might have an ax to grind with the current President and refuse to vote in his favour and vice versa. If all Representatives voted along party lines, the following map would be the result.

Map of current House of Representatives division

Immediately, the result is clear: the GOP can obtain a majority from its presumed-to-be loyal members and Donald J. Trump would remain in office. There’s a few notes to make, however. Michigan had an even split, until Representative Justin Amash left his party and joined the Libertarian Party. His vote determines if the Democrats can rely on the State or not. Pennsylvania is an actual even split and a single Representative’s swinging vote could either cement the GOP’s lead or attempt to put a Democrat in the White House.

An example of a close State would be Florida, where one Republican Representative could stop the GOP from obtaining its 26 votes and the ensuing outright victory. A similar situation exists in all States with 1 Representative, although these States are less likely to swing according to the CPVI, and in States with closer splits, such as Wisconsin, Colorado and Arizona. A contingent election puts Donald Trump in a much more favourable position than his rival will like.

Whichever way this election swings, it will not be an easy result to swallow.

Dialogue & Discourse

News and ideas worthy of discourse.

Luuk Sips

Written by

Luuk Sips

Welcome to my profile! I am a law student from the Netherlands with a keen interest in American politics, political systems and travel.

Dialogue & Discourse

News and ideas worthy of discourse. Fundamentally informative and intelligently analytical.

Luuk Sips

Written by

Luuk Sips

Welcome to my profile! I am a law student from the Netherlands with a keen interest in American politics, political systems and travel.

Dialogue & Discourse

News and ideas worthy of discourse. Fundamentally informative and intelligently analytical.

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