Dem 51
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GOP 49
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Suppose There Is a Contingent Election in the House on Jan. 6, 2025

With Bobby Kennedy Jr. and some No Labels candidate on the ballot next year, there is a small chance that one or both of them could pick off a state or two. It is not likely, but it could happen what with both Trump and Biden unpopular and Trump potentially heading for prison by Election Day next year. Alaska and Maine are both states where independents do well and both now use ranked choice voting, which people don't fully understand. It is conceivable that the No Labels candidate or Bobby Jr. wins one of them and that is enough to keep Biden and Trump just under 270. Then the election goes to the House, with every state getting one vote.

Currently, Republicans control 26 House delegations, Democrats control 22, and Minnesota and North Carolina are split. Suppose the presidential election goes to the House. Does that mean Trump would get 26 votes to Biden's 22 and thus win? Obviously that depends on the composition of the new House, which many observers expect the Democrats to control. But if the Democrats have a majority of members while Republicans have a (narrow) majority of state delegations, it is not so simple.

If Democrats have a majority of members in the House, Rep. Hakeem Jeffries (D-NY) will be elected speaker and the Democrats will get to make the rules for what the Twelfth Amendment quaintly calls a "contingent election." What could the majority do to throw sand in the gears of government? The Democrats could make a rule forcing all members to cast a secret ballot for president. Then the clerk of the House would open all the sealed ballots, sort them by state, and see who carried each state. It is widely known that many Republicans despise Donald Trump. They support him in public because they are afraid of the consequences, but in a secret ballot, some of them might vote for the No Labels candidate if he is a Republican. If No Labels can sign up, say Larry Hogan or Gov. Chris Sununu (R-NH) as their candidate, the No Labels candidate could get votes in the contingent election from Republicans who despise Trump. That could get the number of states voting for Trump below 26. All it would take is for one close state to flip. For example, Arizona is currently 3D, 6R. Suppose the Democrats knock off one Republican in 2024 and make it 4D, 5R, and one of the Arizona Republicans votes secretly for the No Labels candidate. Then the vote would be Biden 4, Trump 4, No Labels 1, so Arizona would be eliminated and the Republicans would have only 25 votes—not enough to win.

Also, the Democratic House could make a rule stating that a vote from a state counts only if a majority (not a plurality) of the representatives vote for one candidate. So if Kansas voted Trump 2, Biden 1, No Labels 1, it would lose its vote, even though Trump had a plurality (but not a majority). The Constitution gives each chamber the power to make its own rules, so it is unlikely that the Supreme Court would tell the House what its rules should be. And even if it did, the House might ignore the decision on the grounds that the Constitution is explicit in giving each chamber the power to make its own rules, so Supreme Court, kindly butt out.

Additionally, the Fourteenth Amendment says that folks who took part in an insurrection against the United States are disqualified, but it doesn't say who gets to make the call. Suppose the House decides: "We do!" Consequently, all votes for Trump are discarded. If you are excited/dismayed by the possibility of a contingent election, this report on the matter by a group called United to Protect Democracy might supply some interesting bedtime reading matter. Among other topics besides contingent elections that it covers is faithless electors. They seem to crop up from time to time and in a close election with unpopular candidates, there could be a few.

In the event of a contingent election, if no candidate gets 26 votes in the House, then nobody is elected president. In that case, the person elected by the Senate as vice president acts as president, potentially until Jan. 3, 2027, when a new House is seated. The House gets to choose among the top three electoral vote getters but the Senate gets to choose between only the top two. That means the Senate gets to choose between only the Democratic and the Republican veep candidates. The No Labels candidate for veep will not be on the Senate ballot. If the Democrats manage to hold the Senate, then Kamala Harris could get to sit in the big chair for at least 2 years. If the Republicans win the Senate, Trump's running mate could get to sit in the big chair. Acting President Kristi Noem or Kari Lake, anyone? If the Senate is split 50-50 and can't pick a veep, the Speaker of the House acts as president. (V)

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