Enter Congress. If neither candidate gets to 270 electors due to disputed ballots, the House would have to decide the election.
Though the House has a Democratic majority, such an outcome would almost certainly benefit Trump. Here’s why: In a concession to small states concerned their voices would be marginalized if the House was called upon to choose the president, the founders gave only one vote to each state. House delegations from each state meet to decide how to cast their single vote.
That voting procedure gives equal representation to California – population 40 million – and Wyoming, population 600,000.
This arrangement favors Republicans. The GOP has dominated the House delegations of 26 states since 2018 – exactly the number required to reach a majority under the rules of House presidential selection. But it’s not the current House that would decide a contested 2020 election; it is the newly elected House, and many Nov. 3 congressional races remain undecided. So far, though, Republicans have retained control of the 26 congressional delegations they currently hold, and Democrats have lost control of two states, Minnesota and Iowa.
Evenly divided delegations count as abstentions, and Republican gains in Minnesota and Iowa are moving these states from Democratic to abstentions.
Perhaps the most
relevant precedent for a contested 2020 election that winds up in the House is the 1876 election between Democrat Samuel Tilden and Republican Rutherford B. Hayes. That election saw disputed returns in four states – Florida, South Carolina, Louisiana and Oregon – with a total of 20 electoral votes.
Excluding those 20 disputed electors, Tilden had 184 pledged electors of the 185 needed for victory in the Electoral College; Hayes had 165. Tilden was clearly the front-runner – but Hayes would win if all the contested votes went for him.
Because of a
post-Civil War rule allowing Congress – read, Northern Republicans worried about
Black voter suppression – to dispute the vote count in Southern states and bypass local courts, Congress established a commission to resolve the disputed 1876 returns.
As Michael Holt writes in his
examination of the 1876 election, the 15-member commission had five House representatives, five senators and five Supreme Court justices. Fourteen of the commissioners had identifiable partisan leanings: seven Democrats and seven Republicans. The 15th member was a justice known for his impartiality.
Hope of a nonpartisan outcome was dashed when the one impartial commissioner resigned and was replaced by a Republican judge. The commission voted along party lines to give all 20 disputed electors to Hayes.
To prevent the Democratic-dominated Senate from derailing Hayes’ single-vote triumph over Tilden by refusing to confirm its decision, Republicans were forced to make a deal: Abandon Reconstruction, their
policy of Black political and economic inclusion in the post-Civil War South. This paved the way for Jim Crow segregation.