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Reports in recent weeks have noted that the Trump and Biden campaigns are preparing for challenges arising from mail-in ballots as a record number of Americans rely on them this election cycle to avoid having to show up at polling places amid the ongoing COVID-19 pandemic.
The campaign of Democratic nominee Joe Biden, for example, has hired hundreds of lawyers, including at least two former solicitors general, Donald Verrilli Jr. and Walter Dellinger, in anticipation of filing legal challenges to election results in battleground states. And state attorneys general in both parties have said that results will not be final on Election Night.
All of which begs the question: What happens if results are not finalized by January 20 of the following year, 2021 — the date presidents and vice presidents are constitutionally obligated to step down?
President Donald Trump has suggested that House Speaker Nancy Pelosi could be elevated to the presidency if only temporarily, should legal challenges to the November election results take weeks or even months to sort out.
With all of that in mind, Fox News congressional correspondent Chad Pergram examined the possibilities of a highly contested election and the very real possibility that Pelosi, who, as House Speaker, is already second in line to the presidency, would ascend to the Oval Office.
(Source: Fox News)
While acknowledging the theory President Trump has put forth, Pergram said that a lot of things had to happen first.
“The first problem is timing — states must finalize their electoral vote slates by December 14,” Pergram reports.
“But what if states are still counting votes and if a state submits different slates of electors to Congress?” Pergram added.
Edward Foley, a law professor at The Ohio State University, said it could become “a nightmare scenario.”
“Pennsylvania, Wisconsin are sending competing submissions of electoral votes claiming to be the real ones from the states,” Foley says.
Under the Constitution, the new Congress will convene January 3, when House members will elect a new speaker. If Democrats retain control of the lower chamber, which some polling suggests will be the case, then it’s very likely that Pelosi will be reelected. However, if Republicans retake the House, then the leading candidate to become speaker is GOP Minority Leader Kevin McCarthy of California.
Next, the House and Senate meet in joint session to certify the Electoral College.
“If a governor or a [state] legislature refuses to send any electors to the Congress … there’s a great deal of discretion that is left with the Congress,” says John Lawrence, Pelosi’s former chief of staff.
Pergram noted that in 2001, Congressional Black Caucus members contested Florida’s slate of electors in a hard-fought legal battle between GOP challenger George W. Bush and his Democratic rival, Vice President Al Gore, after a series of controversial recounts that were eventually ended by the U.S. Supreme Court, handing Bush a very narrow victory.
“There’s trouble if Congress can’t agree which candidate won 270 electoral votes,” the Constitutional threshold that must be achieved in order to win the presidency.
Notes constitutional law expert and Heritage Foundation senior fellow Hans von Spakovsky, “There’s no set time limit in the Constitution or elsewhere, and they [Congress] are the ultimate deciders of this.”
According to the 12th Amendment, if Congress is at an impasse over deciding on electors, then the House “shall choose immediately, by ballot, the President.”
Two presidents — Thomas Jefferson in 1801 and John Quincy Adams in 1825 — have been chosen in this fashion, which is called a “contingent election.”
But it’s not just a vote of ‘the House.’ Each state votes by a single delegate, no matter their size or population, and each delegate is chosen by state legislatures.
Currently, Republicans control 26 state legislatures, Democrats 22, and two — Michigan and Pennsylvania — are “independent.”
Thus, “Republicans — if they vote as a bloc — could conceivably reelect President Trump.”
The Fox News correspondent noted that the House “haggled for six days” during the 1801 contingent election before ultimately electing Jefferson “on the 36th ballot.”
However, if the House simply cannot decide by noon on January 20, then the Speaker would become president, at least for a time, via the Presidential Succession Act.
“These scenarios are far-fetched but they’re not impossible,” Pergram added. “But they raise a bigger question: Could Americans accept any of these outcomes?”
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