Supreme Court rulings exposed the ‘contingent election’ issue

According to many polls, President Donald Trump's path to re-election has never looked more difficult. But the polls fail to account for what is known as the "contingent election," which Lin-Manuel Miranda uses in the storyline to the hit musical "Hamilton."

The president is not elected through the popular vote. Rather, Article II, Section 1, of the Constitution specifies a process using state-designated electors sitting in the Electoral College. But the 12th Amendment contains a default mechanism, known as the "contingent election," that shifts the presidential decision from the Electoral College to Congress. This shift in decision making occurs if no candidate receives a majority of 270 electoral votes. In such a case, "the House of Representatives shall choose immediately, by ballot, the President" from the three candidates receiving the most electoral votes.

The 12th Amendment also states, "But in choosing the President, the votes shall be taken by states, the representation from each state having one vote." Thus, regardless of the size of the state or its population, each state has only one vote. Although Republicans currently have fewer House members, the Republicans have more House delegations (26) than the Democratic delegations (23). Thus, moving the effective decision from the Electoral College into the House of Representatives is to the advantage of Trump in his quest for a second term.

On July 6, the U.S. Supreme Court put an end to the "faithless elector" controversy when it decided Chiafalo v. Washington, 2020 DJDAR 6892, and Colorado v. Baca, 2020 DJDAR 6902. The court held that electors must vote as they have pledged or face sanction under state law, including possible fines. But the cases also exposed the 12th Amendment "contingent election" issue.

In Chiafalo, three electors pledged to vote for Hilary Clinton, but they decided to vote for someone else with the hope of throwing the election into the House of Representatives, which would deprive Trump of a mathematical majority in the Electoral College. The scheme failed because they couldn't convince enough other electors to follow suit. Only a total of seven faithless electors joined the cabal. The court has now slammed the door on faithless electors trying the same scheme in the future, but the contingent default mechanism still exists.

Article II provides that each state "shall appoint" electors for president and vice president in a manner directed by the state legislature on a day determined by Congress. The responsibility for resolving election contests and challenges lies with the state. But the Supreme Court added a wrinkle to the administration of this responsibility when it decided Bush v. Gore, 531 U.S. 98 (2000). The court stepped into the recount controversy allowing a prior state vote certification favoring George Bush to stand, which effectively awarded the presidency to Bush. Whether and under what circumstances the principles of the Bush decision would apply again is an open question.

During the 2016 election, Trump said that he might not accept the results of the election "if he felt that it was rigged against him." Few should doubt that he will use every ploy available to retain the presidency, including shifting the decision from the Electoral College into the House of Representatives through the default mechanism of the 12th Amendment. This has the potential to further divide the nation and create chaos.

If the certification of the electors in key states fails or is delayed, by claims of foreign interference, voter suppression litigation, or administrative challenges, beyond the December 15 reporting date set by Congress, thus mathematically preventing a majority in the Electoral College, Trump's chances of a second term may be markedly improved regardless of what the polls and pundits now say. This possibility is apt to be an unhappy surprise for many voters. 