2020 has been the year of a global pandemic, the greatest spike in unemployment in American history, racial tension, and a Presidential election. And it could get way more insane. It should go without saying that this scenario is relatively unlikely, yet the individual parts aren’t that unlikely themselves.
Imagine this: the 2016 election map, but Biden wins Arizona, Wisconsin, and Michigan. That’s 269-269. Unless there are faithless electors, the election is tied and goes to the House of Representatives– as per the 12th Amendment.
If the House of Representatives has to decide the election is it not each individual Representative voting. Instead, the 12th Amendment says “the votes [for President] shall be taken by states”– i.e. each state delegation will have its own vote and the candidate that receives the majority of the vote will get that state’s vote. The candidate with the most states voting for it will become President. Of course, since there are 50 states, that leaves the possibility of a 25 – 25 tie. Right now, a 25 – 25 tie is unlikely unless some Representatives break party lines, but if Democrats flip the right amount of state delegations that would change. Currently Republicans have 26 delegations with another 2 delegations tied. Flipping the correct 2 or 3 state delegations would be all this scenario needs.
At this point, the Vice President should become President, but what if there is no Vice President? Mike Pence’s first term will be over. In the case of an Electoral College tie, it would be up to the Senate to pick who the new Vice President is. If Democrats pick up three Senate seats, then the chamber has a 50 – 50 gridlock and Pence will be unable to cast a tie breaking vote. In this scenario, the Speaker of the House is sworn in on January 21, 2020. That person is likely to be Nancy Pelosi. Remember: the Speaker of the House is chosen by a vote of individual members, not state delegations.
Now, let me throw in one more wrinkle. The Speaker of the House is only in the line of succession because of the Presidential Succession Act of 1947, but it is an open question if that part of the act is constitutional. The Constitution says Congress can select an “Officer” to become President. Some lawyers say that term only refers to executive branch appointees like the Secretary of State and Defense. Others argue because they used “Officer” instead of “Officer of the United States” that limitation does not apply. Undoubtedly, Republicans will test it to prevent Nancy Pelosi from becoming President. If the Speaker of the House is ineligible to become President then I would imagine the President pro tempore of the Senate of the Senate would be too. Even if he wasn’t, a 50 – 50 Senate might be too gridlocked to pick one. If all of this happens, say hello to President Mike Pompeo.
Of course, while all the individual scenarios here are highly plausible. The election map seems to favor a 269 – 269 scenario this year more than others. Similarly, Democrats netting 3 Senators is clearly possible– Fivethirtyeight gives it ~11% chance. But while they are possible the extreme gridlock needed doesn’t seem as likely. For example, all it could take is one Representative in the right state to cross party lines.
Exit alternative chaos scenario: Either Trump or Biden, whoever wins, dies before inauguration day making Pence or Harris President.