Joseph V. Micallef is a best-selling military history and world affairs author, and keynote speaker. Follow him on Twitter @JosephVMicallef.
The purpose of elections is to determine an outcome, to designate a winner and, by extension, one or more losers. The mechanics of elections, in and of themselves, do not carry national security implications, although the selection of a winner may result in far-reaching policy changes.
From a practical standpoint, the goals and objectives of U.S. foreign and military policy do not change markedly as a result of elections, nor does the global environment in which that policy must be carried out. The style, the rhetoric and the priorities of those objectives, however, can be sharply affected by election outcomes.
What happens if an election fails to designate a winner? The Constitution of the United States defines such outcomes as a "contingent election." Are there implications on U.S. national security if the 2020 presidential election should end up a contingent election? How would such a failed election be resolved?
Contingent Elections in American History
There are a number of ways that an election could become contingent. To be elected president of the United States, a candidate must obtain a majority of the votes in the Electoral College. Currently, that stands at 270 or more votes. In the event of multiple candidates, it's possible that no one candidate achieves a majority of the Electoral College votes. This has happened only once.
The 1824 election featured four candidates for president: Andrew Jackson, John Quincy Adams, Henry Clay and William Crawford. Jackson won the most popular votes and had 99 electoral votes out of 261 to Adam's 84 electoral votes. In accordance with Article II, Section 1 Clause 2 of the Constitution, as modified by the 12th Amendment, a contingent election was declared, and the matter was referred to the House of Representatives. The House chose John Quincy Adams as the 10th president of the United States.
The last time a third-party candidate won electoral votes was in 1968. George Wallace and retired Air Force Gen. Curtis Lemay ran for president and vice president under the American Independent Party. They won 13.5% of the popular vote and obtained majorities in Arkansas, Louisiana, Mississippi, Georgia and Alabama, gaining 46 Electoral College votes. Their success did not change the election outcome, as the Republican ticket of Richard Nixon and Spiro Agnew won the Electoral College easily with 301 of the 538 votes.
A more likely scenario is a tie in the Electoral College vote. Forty-eight of the 50 states award all their Electoral College votes to whichever candidate obtains the most votes statewide. Nebraska and Maine apportion their electoral votes based on the outcomes by congressional district, plus two more votes based on the statewide results.
In the 2016 presidential election, Donald Trump won the Electoral College 306 votes to Hillary Clinton's 232. The actual total was 304 to 225 because seven "faithless electors," two pledged to Trump and five pledged to Clinton, voted for someone else. Had Clinton carried Pennsylvania and Michigan, two states she lost by a sliver, and had Maine not apportioned its electoral votes by congressional district, the Electoral College would have been tied.
There has been only one instance when the Electoral College was tied. In the 1800 election, Thomas Jefferson and Aaron Burr both received 73 electoral votes. Burr was technically Jefferson's vice presidential candidate but, prior to the 12th Amendment, each elector had two votes, one for their presidential choice and one for their vice presidential choice. The election was referred to the House of Representatives, which chose Jefferson, after 36 ballots, as the third president of the U.S.
What would happen if the 2020 presidential election results in a tie of the Electoral College? The procedure for dealing with a contingent election as further modified by the 20th Amendment is straightforward.
In this instance, the incoming House of Representatives would choose the president, while the Senate would select a vice president. The voting in the House would be by state, with each state receiving one vote, based on the underlying vote of their congressional delegation. Each state's delegation must have a majority in favor of one of the candidates. If they lack a majority, the state cannot cast a vote.
Even though the Democratic Party currently has a majority in the House, the Republican Party has a majority of state delegations. In the 116th Congress, the Democratic Party has a majority in 22 state delegations and the Republican Party has a majority in 26. Two states, Pennsylvania and Michigan, are evenly split. If the voting were along party lines and the balance between the state delegations didn't change, the Republican presidential candidate would win. What the balance will be in the incoming 117th Congress is anyone's guess.
Voting in the Senate is by individual senator. If a tie resulted, it would fall on the current vice president, in his capacity as president of the Senate, to break the tie.
The House is limited to choosing between the three candidates who received the most electoral votes. In the event the House is unable to reach a decision and the Senate has selected a vice president, the vice president-elect would become president until a president could be chosen. In the case that neither a president or vice president has been selected, the House also has the option of selecting a temporary president until it can reach a decision. Under the presidential succession spelled out in the 20th Amendment, if Congress is unable to select a president or vice president, the speaker of the House would become acting president.
A third scenario is a breakdown in tabulating the election results. The election outcome isn't official until each state certifies the result. Candidates can object to a state's certification if they feel that the tabulation has been faulty in some way, that legitimate votes were disqualified or that voter fraud occurred. Typically, state election laws require mandatory recounts if an election is particularly close.
Every election has issues with the tabulation of voter results. In most instances, however, the number of votes in question isn't enough to change the outcome.
In the 2000 presidential election between George W. Bush and Al Gore, the outcome hinged on the results of the vote in Florida. Bush had 246 electoral votes to Gore's 266. Florida's 25 electoral votes would have carried either candidate over the finish line. What followed was a month's worth of litigation while the rest of the country debated the significance of "hanging chads," "fat chads" and "pregnant chads."
Eventually, the Supreme Court ruled in favor of Bush, stopping the recount of votes and allowing the Florida secretary of state to certify that Bush had won the election in Florida by 537 votes and awarding him the state's 25 electors. Gore could have petitioned Congress to reject the Florida electors, a decision that would have required the consent of both chambers and precipitated a contingent election. Since both the Senate and the House were controlled by the Republican Party, that outcome was unlikely.
There has been one instance in which issues with certifying the vote resulted in no candidate securing a majority of the Electoral College and forced the election to be decided in the House of Representatives.
In the presidential election of 1876, the Republican Party nominated Rutherford B. Hayes, while the Democratic Party nominated Samuel J. Tilden. One hundred eighty-five electoral votes were needed to win. Tilden had 184 votes, and Hayes had 165. Three states -- Florida, Louisiana and South Carolina -- were unable to declare a winner. Both sides claimed to have won all three states, amid charges of fraud and accusations by the Republicans that Democratic state officials had suppressed the African American vote. In addition, in Oregon, one elector was disqualified because he was a government employee.
The issue was resolved by what was informally termed the Compromise of 1876. The House appointed an Electoral Commission to resolve the matter. The Democratic Party-controlled House of Representatives agreed to vote for the decision of the Electoral Commission in favor of Hayes in return for the withdrawal of all U.S. Army troops still stationed in Florida, Louisiana and South Carolina. The withdrawal marked the official end of Reconstruction in the South.
National Security Implications of a Contingent Election in 2020
Is it possible that we will have a contingent presidential election in 2020? Would there be national security implications if we did?
There are only two credible candidates contesting the 2020 presidential election: Donald Trump and Joe Biden. There will be third-party candidates listed on some ballots, but it's highly unlikely that any of them can win electoral votes. That means that the Electoral College outcome, assuming all states certify their results, will produce a clear winner or, at worst, a tie. In the event of a tie, there is a clear constitutional procedure for resolving the matter.
The more complicated issue is the states' certification of their results. State governments have till Dec. 3, 2020, to certify their results. Under federal law, any dispute over the election results must be resolved by Dec. 8. Given that such a dispute could precipitate a constitutional crisis, the courts, all the way to the Supreme Court, would expedite any such challenges so that the constitutional procedure governing contingent elections could, if needed, be pursued.
What happens if a secretary of state is unable to certify their state's results before the deadline because not all ballots have been counted or legal challenges to the election outcomes are forcing a recount? If the election produced a clear-cut winner in the Electoral College regardless of whichever states have not yet certified their election results, then the issue, while deeply embarrassing to that state's election officials, is academic.
If, on the other hand, the Electoral College outcome is a close one and no candidate can get over the finish line without resolving the missing states, then -- just as in 1876 -- the 2020 presidential election would be a contingent one and it would fall to the House of Representatives to elect a president.
The issue is particularly germane because of New York State's recent experience in counting the results of the June 23 primary election. It took state election officials more than a month to tabulate the votes cast, mostly because of a deluge of mail-in ballots. According to some reports, as many as 25% of the mail-in ballots in New York City were rejected because they did not conform to state requirements, a development that has already spawned numerous lawsuits by losing candidates, as well as demands for recounts.
Should New York election officials have a similar experience in November, it is questionable whether the state could certify its election results before the Dec. 3 deadline. There are a number of other states that have already decided or are contemplating expanding their vote-by-mail options. If these states have a similar experience, it is possible that the winner of the 2020 presidential election will not be known before the Dec. 3 cutoff.
Ironically, it has been Democratic governors and Democratic-controlled state legislatures that have pushed the hardest for mail-in balloting. Should these states be overwhelmed by the number of mailed ballots and be unable to count them in time for the Dec. 3 certification, that decision could actually backfire against the Biden campaign.
State laws regarding the selection of electors vary. It's possible that a state legislature can decide to appoint electors, even before an election has been certified, on the basis that the results overwhelmingly favor one of the candidates. Such actions, however, would likely precipitate a legal battle.
Per federal law, since 1936, electors in each state are required to cast their ballots "on the first Monday after the second Wednesday in December next following their appointment." In this election, that will be Dec. 14. The electors' votes are opened in a joint session of Congress held in the first week of January. The incumbent vice president, acting in his capacity as president of the Senate, reads out the vote totals by state. If no candidate receives a majority, a contingent election is declared.
Recently, the Supreme Court ruled that state election laws that require electors to vote in accordance with the election results are constitutional and that states can replace "faithless electors." That means the Electoral College outcome will be known well before those votes are officially counted in Washington.
Per the 20th Amendment to the Constitution, an incumbent president's authority expires at noon on Jan. 20 of the year following the election. There is no legal basis for a president to retain their authority beyond that date. If no candidate wins a majority of the Electoral College, and if the House of Representatives is unable to elect a president or the Senate elect a vice president, then the speaker of the House becomes the acting president until such time as the House of Representatives or the Senate can discharge their constitutional responsibilities.
The procedure set out in the Constitution in the event of a contingent election is clear-cut. Come Jan. 20, 2021, there will be a president and only one president, either duly elected, selected by the House of Representatives, or an acting one. There is simply no scenario where two different people could both contend to be president, subject to some future deliberation by a court. That means there will be only one commander in chief to whom the military reports, and the chain of command within the federal government remains unaltered.
Critics of President Trump have suggested that, should he lose the 2020 election, he will allege fraud, refuse to step down and precipitate a constitutional crisis. In my view, it's highly unlikely that would or could happen.
The constitutional procedure for selecting a new president in the event one isn't determined by the Electoral College is clearly spelled out. Per federal law, any legal challenges to the results certified by the states must be settled by Dec. 8. It's reasonable to expect that courts will expedite any legal challenges to conform to the schedule and procedures laid out in the Constitution and federal law. There is no reason to expect that procedure won't be followed by Congress or respected by the rest of the federal government.
A long, drawn-out deliberation accompanied by uncertainty as to who will end up being president could, if Biden wins, make for a difficult and complicated transition period. America's adversaries often test new administrations with provocative acts to see how they will respond. Even if Trump gets reelected, a controversial election may limit his administration's freedom of action.
What is unmistakable is that the 2020 presidential election is going to be a highly contentious one. Regardless of who wins, the losing side will contend that it was robbed and that election improprieties were to blame. Given the risks of a delay and the resulting consequences, this is probably not an ideal time to experiment with different voting procedures, notwithstanding the impact of the COVID-19 pandemic.
The smooth function of the electoral process has been a hallmark of the American political system. Today, it seems increasingly strained and frayed.
Come January, there will be a president in the White House, regardless of the ill will that surrounds their selection. The American government and military will continue to function as before. The political divisiveness that increasingly characterizes American politics, however, is what will ultimately pose the biggest threat to U.S. national security.
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