By Chad Pergram | Fox News
House and Senate are the ultimate arbiters of determining how many electoral votes go to each presidential candidate.
Individual races in the House of Representatives may matter more than usual this year.
After all, there’s a reason why House Speaker Nancy Pelosi, D-Calif., and even President Trump have alluded to why individual House contests could have exponential impact, depending on who wins and loses in which state.
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To be clear, there are few scenarios where Democrats could lose control of the House this fall. The current breakdown is 232 Democrats to 197 Republicans and one Libertarian, Rep. Justin Amash, L-Mich. There are five vacancies. Democrats are likely to add to that majority this fall.
However, here’s the problem: potential election chaos.
As we reported in this space last month, the House and Senate are the ultimate arbiters of determining how many electoral votes go to each presidential candidate. This is usually a fait accompli, established during a rather sleepy Joint Session of Congress every fourth January.
If the House and Senate can’t sort out the electoral college, the 12th Amendment to the Constitution pitches the presidential election into the House. The House of Representatives then votes to elect the new President. This is called a “contingent election.”
Believe it or not, this has happened twice. The House elected Thomas Jefferson in 1801 and John Quincy Adams in 1825.
Easy, right? If the Democrats control the House and there is electoral bedlam, they’ll just elect Democratic nominee Joe Biden as President, right?
Not at all.
The 12th Amendment to the Constitution says that “But in choosing the President, the votes shall by taken by states, the representation from each state having one vote.”
In other words, each state gets one vote. This is why individual House delegations – and whether they favor Democrats are Republicans – is paramount in a contingent election. The House chooses among the top three electoral college vote-getters: Mr. Trump, Biden and, maybe, anyone else who scores an electoral vote.
Remember, Faith Spotted Eagle marshaled one electoral vote in 2016.
And you thought 2020 was weird.
Right now, Republicans control the House delegations from 26 states. Democrats control 22. The battleground state of Pennsylvania is tied at nine Republicans and nine Democrats. The swing state of Michigan favors Democrats over Republicans seven seats to six. But there’s Amash, the Libertarian. And Amash is retiring. So, it’s kinda-sorta split right now, technically seven to seven. And Amash’s district leans Republican. So, there could be a tie in Michigan as well.
Rep. Fred Upton, R-Mich., is in a district that leans slightly Republican. What if Democrats flip it? And, Rep. Elissa Slotkin, D-Mich., won what had been a GOP district in 2018. Slotkin’s district slightly favors Democrats now. But what if Republicans win that? And Democrats win Upton’s seat? Or vice versa? Or Republicans win all of them?
The Michigan delegation could slope toward the Democrats. If….if….Republicans hold the 26 state delegations they currently control, Democrats just need to capture two more delegations to tie the GOP.
We could do this all day long.
Establishing which party controls each delegation is impossible to know until after the election. This involves some granular, race-to-race study. A panolopy of seats in key states could dictate the future of the republic.
Take a look at Iowa. It’s a swing state. Sen. Joni Ernst, R-Iowa, faces a competitive re-election bid this fall. The state features four seats. Democrats hold three of them. So, this is currently a “Democratic state” when it comes to the House delegation. Freshman Reps. Cindy Axne, D-Iowa, and Abby Finkenauer, D-Iowa, both flipped seats in the Democrats’ favor last cycle. But they face competitive re-election bids. Rep. Dave Loebsack, D-Iowa, is retiring. That’s a seat which could be in play as well.
So, even though Democrats hold the advantage now in Iowa, it’s possible the Iowa delegation could flip to GOP control if these races fall the other way. Or, be tied.
It’s also worth studying states like Virginia, New Hampshire, Maine and Wisconsin. Wins or losses by candidates in competitive districts in all of these states could determine the breakdown of which party holds more House delegations in 2021.
There are other case studies. Rep. Don Young, R-Alaska, is the most senior member of the House, having served since 1973. But there are rumblings that in a volatile election year like 2020 that the 87-year-old Young could encounter an upset in his contest against independent Alyse Galvin. She’s outraised Young, the longest-serving Republican in House history. So, a Young defeat could shift Alaska from the GOP side to – the independent side? And for which candidate would Galvin vote?
This is the whole thing. Small states like Alaska, South Dakota, Montana and a few others feature but a single, “at-large” House member. In a contingent election, the votes of those members, constituting an entire state delegation, wield as much influence as California, bursting with 53 House members.
Before falling ill, President Trump has invoked the possibility a contingent election on the campaign trail.
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“I don’t want to go back to Congress even though we have an advantage if we go back to Congress,” said the President. “I think it’s 26 to 22 or something because it’s counted one vote per state. So we actually have an advantage. Oh, (Democrats) are going be thrilled to hear that.”
In a recent warning to House Democrats, Pelosi wrote that Mr. Trump “has made it increasingly clear that he will do whatever it takes to remain in power.” The Speaker cited “how many state delegations the Democrats win in this upcoming election could determine who are next President is.”
Pelosi then implored Democrats to strive to win as many House delegations as possible.
“We cannot leave anything to chance,” said Pelosi “This strategy to protect our democracy and elect Joe Biden will take an all-out effort and resources.”
About a bizarre a situation as one could imagine is unfolding as we speak in Minnesota.
Minnesota is a swing state. Its eight-person delegation favors Democrats 5-3. Rep. Dean Phillips, D-Minn., is a freshman who flipped a district last cycle. House Agriculture Committee Chairman Collin Peterson, D-Minn., regularly wins re-election. But President Trump carried Peterson’s district by an astonishing 35 points in 2016. Yet, on the same ballot, western Minnesota voters returned Peterson to Washington. So, that’s two seats in play right there alone.
It gets better.
The late Sen. Paul Wellstone, D-Minn., died in a plane crash just days before the 2002 election. Former Sen. Norm Coleman, R-Minn., won, narrowly defeating former Vice President and Sen. Walter Mondale, D-Minn., whom Democrats scrambled to get onto the ballot. Minnesota later passed a law requiring the state postpone elections if a major party nominee passes away within 79 days of Election Day.
Adam Charles Weeks, the Legal Marijuana Now Party candidate for Minnesota’s 2nd Congressional District died on September 24. He was running to unseat Rep. Angie Craig, D-Minn. Minnesota regards the Legal Marijuana Now Party as a major political group. Therefore, Weeks’s death postpones the election for Craig’s seat until February 9, 2021! Craig will serve until 11:59:59 am et on January 3. And then that seat will lie vacant until February.
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Democrats now control the Minnesota House delegation. But for the sake of argument, let’s say Peterson or Phillips lose. The delegation’s then deadlocked at four-four. But, in reality, it’s 4-3 in favor of Republicans since the election for Minnesota’s 2nd Congressional district, Craig’s seat, won’t happen until February.
You see how pecarious this all is. The level of uncertainty is astronomical. The House could select a president based on miniscule, scattered political decisions in key political districts all over the country.
Reporters pressed Pelosi recently about what would happen if a stalemate pitched the presidential election into the House.
“Will be ready,” said Pelosi. “We have multiple opportunities where we can take down that one vote. And we also have multiple opportunities where we could get to 26 (state delegations) oursevles.”
For Democrats and Joe Biden, the simplest thing would be for Democrats to simply win a majority of all House delegations outright. 26. But keep in mind that Article I, Section 5 of the Constitution allows the House and Senate to “be the Judge of Elections, Returns and Qualifations of its own members.”
What if it came down to not seating a member – or members – when the Congress convenes on January 3 – if it helped tip state delegations one way or the other? Such a maneuaver is rare. But possible. Especially in a climate like this one.
“We’re in an era of power politics,” argued Kyle Kondik from the University Center for Politics. “That’s something that the voters may want to hear about and take into account when they vote.”
There could also be horse trading between the sides. Don’t forget that future President Andrew Jackson accused House Speaker Henry Clay of a “corrupt bargain,” engineering the election of President John Quincy Adams over Jackson in 1825.
And in the contingent election of 1801 electing Thomas Jefferson over Aaron Burr and sitting President John Adams, the House deadlocked for 35 consecutive ballots. But on the 36th ballot, House delegations from Vermonth, Delaware and Maryaldn refused to cast ballots, leaving their slates blank. South Carolina also switched, too. The changes propelled Jefferson to the presidency.
Imagine the power politics back then.
And keep in mind, the House is likely dealing with Pelosi as Speaker next year. Like it or not, this is a Speaker who is the master of power politics. She muscled through ObamaCare. Pelosi owned President Trump after the lengthy 2018-2019 government shutdown. The California Democrat stared down opposition, securing enough votes to return the Speaker’s suite after Democrats captured the House in 2018.
When speaking of a potential contingent election, Pelosi offers this parting shot to President Trump:
“There ain’t no light at the end of the tunnel for you in the House of Representatives,” warned Pelosi. “Because the light at the end the tunnel in the House is going to be a train coming right at your plan.”