By Dan Backer
Most of us are counting down the days until 2020 ends. This is a painful, agonizing, excruciating year. Failed impeachment, political paralysis, a global pandemic, massive social and economic dislocation from seemingly endless shutdowns of schools, churches and business disrupting all our lives. Combined with nationwide protests for social justice, violent riots and Antifa chaos, 2020 has been so 2020, I can't even.
2020 may still have much more in store for us. The most expensive election ever – $11 billion – is still a few days ahead, and predictions abound of another dose of chaos following the vote.
2020's last gasp may yet be the most 2020 ending possible: a Mike Pence presidency. Let me explain.
The presidential campaign culminates in Electoral College math – a candidate must get 270 votes out of 538 to win. Each candidate has several paths to victory. There are also several ways the battleground states might shake out to deliver the unprecedented outcome of a TIE – 269-269.
Then what?
The good news is the possibility of a tie is planned for in the Constitution. The next Congress decides the winner. However, it is not a simple majority vote. Rather, the House votes by state delegation. Each of the 50 states gets one vote (sorry, D.C., none for you), which is determined by the majority from each state delegation.
Currently, the House delegation count is split 26 Republican to 24 Democrat. This is an election year for representatives too, making it very possible for Democrats to pick up additional delegation majorities. In fact, it is a single seat in Florida and Pennsylvania away. Unbound by the popular vote, the party with the most delegations chooses the new president.
This should alert both Trump and Biden voters who are unenthusiastic about some of those down-ticket options. It has never been more important to vote the straight ticket to ensure your desired presidential candidate actually wins.
Just as likely as an Electoral College tie is for Democrats to pick up one delegation. The resulting even 25-25 split in delegations lacks a prescribed tie-breaker – sorry, Nancy. The deadlock could continue until a deal is struck, a strategically placed special election occurs, or 2022 rolls around. So … then what?
Now this gets fun.
While the 12th Amendment establishes that the House chooses the president-elect in the event of an Electoral College tie, the Senate chooses the vice president-elect. So, yes, a Democratic delegate controlled House and Republican controlled Senate could produce a President Biden and Vice President Pence. Or a crazy conflux of red and blue waves might produce President Trump and Vice President Harris (a reality show for the ages).
As the late Billy Mays would say, "but, wait, there's more!"
In the Senate, unlike the House, each senator votes for vice president individually. If Republicans lose a net of just three Senate seats – very much in the realm of possibility – the Senate will be split 50-50. So, when the Senate goes to vote for the vice president-elect, a 50-50 tie results, and the president of the Senate exercises one of his only two constitutional roles – casting tie-breaking votes. The president of the Senate, in those lost days between the new Congress and the Inaugural, is still the then-sitting Vice President of the United States, Mike Pence. For those who say he must recuse himself – a statement without any merit or foundation – keep in mind that would apply equally to vice presidential candidate and then-still U.S. Sen. Kamala Harris.
And so, it comes to be: Vice President Mike Pence would be irrevocably elected by the Senate as the vice president-elect.
If the House is still unable to name a president-elect – and that's not a deal I'd put money on – then under the 20th Amendment to the Constitution, the Vice President-elect, Mike Pence, is sworn in as acting president until they do (which if they can't in the first place is unlikely to change until the next midterm election in 2022).
This means (as we do the math and show our work), that Mike Pence will be sworn on Inauguration Day as the, 45th and a half (?), (acting) president of the United States.
And you know what is really crazy about all this? The craziest part is that it's not even all that crazy for 2020 to end in the MOST 2020 way possible.
Dan Backer is a veteran campaign counsel, having served more than 100 candidates, PACs, and political organizations. He is founding attorney of political.law, a campaign finance and political law firm in Alexandria, VA. This column originally appeared at RealClear Policy.
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