What if????

How The Election Could Get Even Crazier on November 9

With the race tightening after Comey-gate, it’s time to consider the nightmare scenario: The contest doesn’t end on Election Day.

By Jeff Greenfield

n just a few days, this utterly not-of-this-world election will come to an end, and we can start trying to make sense of what has happened.

Or maybe not. With the race apparently tightening in its final days, following FBI Director James Comey’s bombshell disclosure on Friday, we could be entering a twilight zone on November 9 that will make the 37-day struggle to pick a president in 2000 look like business as usual. In fact, we may face not one but a series of genuine constitutional crises.

It begins somewhere around dawn on Wednesday, November 9, when we discover that the election has ended in a 269-269 tie. The odds are still heavily against it, but when you realize that there are close contests in states both blue and red, when Pennsylvania, Georgia, Wisconsin, Arizona, Utah and Alaska are in doubt, it’s at least a plausible outcome.

And such a result would come, remember, after a campaign in which Trump and his supporters have explicitly said that the only way he can lose is if the election is “rigged” (though we've heard that less frequently in recent days after Trump decided that the FBI was not as dishonest as he thought). It's almost certain that during Election Day, Breitbart, Drudge and Co. will be running stories about voter fraud, ballot box stuffing, votes by illegal immigrants and tampered voting machines. (For their part, Democrats will be complaining of voter intimidation, long lines and deliberate attempts at voter suppression.)

If there is a tie, all eyes will look to the House of Representatives, where an electoral-vote deadlock would be resolved by a constitutional provision: Each state gets one vote (that’s right, sparsely populated Wyoming and huge California each get one vote, decided by a majority of the delegation). If a delegation is tied, that state casts no vote, and a majority of 26 states is required. But we won’t actually know what the electoral vote is until December 19, when the electors gather in their states to cast those votes. And this is where the first potential monkey wrench gets thrown.

Let’s say one elector—or a handful of them—decides not to vote for the candidate who won the most votes in their state. We call them “faithless electors,” and they’ve shown up with some regularity in a lot of recent campaigns. These electors are often party loyalists, who are given this honor as a reward for their toil in the political vineyards, and it’s not unreasonable to believe, say, that some Republican regulars may not like the idea of a Donald Trump presidency. If just one defector casts his or her vote for Hillary Clinton, giving her the 270th vote, what happens?

State laws are all over the map. Some require that an elector cast a vote for the candidate they are pledged to; other states impose no such stricture. Whatever sanction a state may impose, there seems to be no mechanism to keep an elector from breaking ranks. Then what?

Move forward to January 6, 2017, when the new Congress meets in joint session to preside over the formal counting of the electoral vote. The outgoing vice president presides over the counting (which is why Nixon, Humphrey and Gore each had to pronounce their own defeats), and the counting proceeds state by state. Congress has to agree that the electoral count has been “regularly given”; so when they reach a state where a faithless elector has cast that decisive vote, an objection can be raised if one House member and one senator declares an objection.

Should that happen, the senators and representatives retreat to their own chamber, and vote on the objection. The one time in recent history when that has happened, in 1968, the houses agreed to count a single vote for George Wallace by an elector from North Carolina, who ran and won on a slate pledged to Richard Nixon. But of course, that had no impact on the result, as was true of every other example. In this hypothetical case, imagine that a Republican House rejected the vote, while a new Democratic Senate voted to uphold it. In that case, election law (3 USC 15) says, the decision by the “executive of the state” shall be decisive. So if, say, a Democratic secretary of state from Pennsylvania or Wisconsin declared the faithless electoral vote valid, that would supposedly end the matter. (The case would look stronger if Clinton had won the popular vote, but there would be all kinds of efforts to prevent that result: The state legislature back home might have weighed in, as the Florida Legislature threatened to do in 2000. Suits would be filed in state and federal courts, seeking to invalidate that vote).

Now turn to the other possibility: There are no faithless electors, and the 269-269 result is certified. The House then begins to vote—choosing only among the top three electoral vote-getters. (The members could not choose Paul Ryan or Mike Pence, unless at least one elector had voted for one of them, and the Congress accepted that “faithless” vote). As of now, 28 House delegations are controlled by the GOP, but remember, it’s the new House that votes, and it’s entirely possible that neither party will command a majority of delegations. So the House just keeps on voting.

Meanwhile, the Senate chooses the new vice president from the top two finishers with each senator casting a vote. Imagine the new Senate is 51-49 Democrat. If party lines hold, they will choose Tim Kaine (yes, he can vote for himself). If the House remains deadlocked until January 20—back in 1800, it took 36 ballots before Thomas Jefferson prevailed over Aaron Burr—then Kaine would serve as acting president until the House finally picked the new chief executive. Could we wind up with Trump as president and Kaine as vice president? Common sense says “no,” but the Constitution says: “could be.”

All of this would be taking place in a political climate as noxious as any in memory. One saving grace of the 2000 battle was that America was a hotbed of rest: The economy was booming, the nation was at peace, and polarization was far less dominant than now. Most of the country seemed to be saying, “Hey, Christmas is coming, the NFL is in full swing, how about figuring out who the president is.”

Today, by contrast, the competition seems almost Manichean; half the country is already convinced that the candidate they oppose is not just wrong, but the embodiment of evil. No, there won’t be tanks in the street, but a protracted, constitutionally complex struggle will exact a heavy toll on the traditional, much venerated “peaceful transfer of power.”

If this isn’t enough to send you reaching for the Xanax, try this scenario on for size. Imagine Trump wins an electoral majority while losing the popular vote; fivethirtyeight.com now rates that as a 10 percent possibility. Meanwhile, the Senate has flipped to the Democrats by a one- or two-vote margin. As soon as the new Congress convenes, with Obama still in the White House for 2½ weeks, the new Senate takes up the nomination of Judge Merrick Garland, rushes through a hearing and—after killing the filibuster rule for Supreme Court nominations, confirms Garland to the court on a straight party-line vote.

Does the Republican House move for an immediate impeachment? Does the new President Trump vow an all-out political war on the Democratic usurpers, disdaining any hint of bipartisan cooperation?

Surely, you say, this is nothing more than a fantasy. Surely this is just water-cooler talk, and cooler heads will prevail, in the interests of something approaching a return to a more normal political process.

That’s what I would have argued ... except that, given what we’ve already witnessed this past year, “normal” seems to have taken an extended leave of absence.