Constitution Day 2020 Special

Who Becomes President if the Election Isn’t Settled

by Inauguration Day?


Well, this answer, unfortunately, is not straight forward, as there are conflicting parts of the
Constitution and the Presidential Succession Act of 1947.

However, what is clear is that Donald Trump cannot serve a second term, past 12 Noon
ET January 20, 2021 unless he is re-elected by the Electoral College, or by the quorum in
the House of Representatives in the event no candidate receives the minimum amount of
Electoral Votes needed to become President.

To put things in perspective, the General Election ballot for November 3, 2020, in most
states, will see the following candidates and their pledged electors:

For President Party For Vice President

Donald J. Trump (i) Republican Mike Pence (i)

Joe Biden Democratic Kamala Harris

Dr. Jo Jorgensen Libertarian Jeremy “Spike” Cohen

Don Blankenship Constitution William Mohr

Howie Hawkins Green Angela Walker

Kanye West Birthday [No Running Mate]

(i) = Incumbents
N.B. Most state ballots will list the candidates alphabetically by last name. This chart is just for
clarity and informational purposes only. Trump, Biden, and Jorgensen are listed at the top by
incumbency and ballot access in all 50 states plus DC. Blankenship and Hawkins, while
members of prominent “3rd parties”, are actually members of “major parties” according to
Federal Election Commission rules, and should appear on many states ballots. West is a
celebrity spoiler who qualified for a handful of state ballots.

According to the U.S. Constitution’s plain language, there is no mention of a popular vote
for Presidential Electors. Article II, Sec. 2, cl. 2, clearly states that:

Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors equal to the whole
Number of Senators and Representatives to which the State
may be entitled in the Congress; but no Senator or
Representative, or Person holding an Office of Trust or Profit
under the United States, shall be appointed an Elector.

It’s very clear according to this clause, which says that state law determines how the
Electors are to be awarded. The 12th Amendment describes the procedure of how the
Electoral College proceedings are to be conducted. There is a brief mention in the 14th
Amendment about men over the age of 21 being denied a voice in the selection of Electors,
but this very likely inoperable, since the 19th Amendment grants women’s suffrage and the
26th Amendment sets the voting age at 18.

Otherwise, there is no mention of a popular vote, even for Presidential Electors, in the
Constitution, only for members of Congress. There’s also no mandate for “winner-take-all”
electors’ slots, as Maine and Nebraska are currently the “holdout” states that award
electors proportionally. (Thank Andrew Jackson for the current practice that’s been around
for almost two centuries!)

COVID Complications

The global COVID-19 Pandemic of 2020 has altered life dramatically for most Americans.
Many persons debate whether or not elections should be delayed, in person with a mask, or
mail-in absentee balloting. Expanded absentee voting was approved by several states to
make sure that all eligible citizens have the opportunity to participate in the most solemn
action in a democracy.

With uncertainty of mail-in absentee ballots making into the hands of local election officials
by the hour of poll closings on November 3rd, the U.S. Postal Service sent out a flyer stating:
“If you plan to vote by mail, plan ahead.”

Due to the pandemic, the incumbent administration has allowed the governors and mayors
to become petty tyrants. With this in-mind, state legislatures could meet in emergency
sessions to pass emergency bills to assign the Electors to anyone who is Constitutionally
qualified to be President and Vice President. Or they may allow Elector independence, a
practice that occurred in the early days of the Republic. Either these or another selection
process would be Constitutional.

Disputed Elections of 1876 and 2000

The 1876 Election was the most dubious and contested in American History. The eventual
winner, Republican Rutherford B. Hayes, was declared victor over Democrat Samuel Tilden
by an 8-7 party-line vote by a Congressional Commission appointed to recount all ballots
due to shenanigans made by certain Southern and Western governors. Inaugurations were
held on March 4th back then, and more time allowed for an accurate result for clarification
if necessary.

The most recently contested Presidential Election of 2000, just twenty years ago, was
nothing compared to that of 1876 and what potentially could happen within the next
several weeks. The dispute was over Florida’s Electoral Votes.

Late on Election Night 2000, most TV networks called Florida for then-Vice President Al
Gore (D), but then-Texas Governor George W. Bush (R) refused to immediately concede.
Since the unofficial results were extremely close, Florida was put back in the “Too Close to
Call” column. After the first few days of recount petitions showing Bush was leading, the
Governor of Florida at the time, who happened to be Jeb!, and Secretary of State Katherine
Harris signed the paperwork certifying Florida’s 25 Electors for Big Brother. Gore sued in
Southeastern Florida courts, the districts home to the infamous “Butterfly Ballot”, claiming
that there should be a recount or do-over since 50,000 persons who intended to vote for
Gore accidently voted for Pat Buchanan’s Reform Party campaign, due to the difficult
instructions on how to cast the ballot.

The district courts and local appellate courts ruled in favor of Bush, but the Florida
Supreme Court ruled in favor of Gore, which brought the most consequential election law
Supreme Court case this century, Bush v. Gore. Decided in an emergency session on
December 12, 2000, the Justices ruled in favor of Bush, both 7-2 against Gore stating that
the relevant section of the 14th Amendment in this article doesn’t apply to Presidential
Elections, and 5-4 in favor of Bush, since once Jeb! certified the Electors, the election was
over at that point.

Once an election is certified, the results can no longer be challenged. Many states and
localities have deadlines to file a challenge to the unofficial results, usually a week or two at
the most. Once the deadline expires and/or the election is certified, the results become
official and cannot be challenged.
This Supreme Court jurisprudence is the reason it’s very unlikely the 2020 Election will last
past December 14th, this year’s Electoral College Day. If for some reason it does, what
would exactly happen?

The only sure thing is a Constitutional Crisis.

What is known is while 20th Amendment sets the beginning of Presidential terms on
January 20th (Sec. 1) and Congressional Sessions on January 3rd “unless they shall by law
appoint a different day” (Sec. 2). In 1876-77, the newly elected Congress was not sworn-in
until the Presidential Election was settled. Most times, it’s known on Election Night who the
next President will be.

The traditional date of Congress counting the Electoral College ballots on January 6th is a
matter of statutory law that doesn’t appear in the Constitution. For example, Congress does
have the right to change the date to Christmas Eve if they wish. Since it’s the precedent
from 1876 that should be followed, it’s the current Congress that will count the ballots
in Presidential tiebreaker/dispute, not the newly elected one.

Yes, most new Congresses every four years count the Electoral College votes, but only
because it’s well established who will the next President will be, and counting the ballots
would be of no consequence, since there is no tie for Congress to break. If they were the
break a tie, House quorum only can pick from the Top 3 Electoral Vote getters for President
and the Senate the Top 2 for Vice President.

If for some reason election litigation lasts well into January, which could affect the
Congressional, Senatorial, and state and local races as well, this is where things will get
tricky:

While the Presidential Succession Act of 1947 has a provision that the Speaker of the House
(currently Nancy Pelosi, D-CA) becomes the Acting President until the Election is finally
settled, this might not be operable, as the 25th Amendment (1967) defines what an “Acting
President” does.

The first two Sections of the 25th Amendment are easy:

Section 1. In the case of removal of the President from
office or of his death or resignation, the Vice President
shall become President.
 Section 2. Whenever there is a vacancy in the office of the
Vice President, the President shall nominate a Vice
President who shall take office upon confirmation by a
majority vote of both Houses of Congress.

Section 2 is how Gerald Ford became Vice President during Watergate. Section 1 is how he,
and all other non-elected Presidents gained power, even before this amendment was
passed. Sections 3 and 4, however, define the Vice President to be the Acting President
when the President cannot cognitively function, and Congress can remove the disabled
President after 21 days of no signs of improvement.

Logically, the 25th Amendment to the Constitution should supersede the relevant part of
Section 3 of the 20th Amendment, which in whole reads:

If, at the time fixed for the beginning of the term of the
President, the President elect shall have died, the Vice
President elect shall become President. If a President shall
not have been chosen before the time fixed for the
beginning of his term, or if the President elect shall have
failed to qualify, then the Vice President elect shall act as
President until a President shall have qualified; and the
Congress may by law provide for the case wherein neither
a President elect nor a Vice President elect shall have
qualified, declaring who shall then act as President, or the
manner in which one who is to act shall be selected, and
such person shall act accordingly until a President or Vice
President shall have qualified.

So to be clear, this amendment allowed the Presidential Succession Act of 1947 (or another
statute to allow another “designated successor”), but appears to be superseded by the 25th
Amendment, which clearly states that once the Oval Office becomes vacant, the Vice
President takes over. If there were no Vice President, then the Speaker of the House would
be next in line. If there’s no Speaker, then the President Pro-Tempore of the Senate would
be next in line, a position currently held by Sen. Chuck Grasserly (R-Iowa), the most senior
senator from the majority party (different from the Majority Leader, despite being the one
who actually runs the Senate). The Secretary of State would then be next...

Bear-in-mind that the Vice President-elect only officially exists once the Electoral College
counts the ballots and certifies the winner. Technically, this part only applies after the
Electoral Votes and counted and certified by Congress. Only when the certified President-
elect dies when the Vice President-elect would take power for the next four years.

Conclusion

Very likely, the Supreme Court will have to interpret the applicable parts of the
Constitution (20th Amendment and 25th Amendment, Sections 1 & 2) if litigation were to
occur well past Christmas 2020. Evidently, Section 1 the 25th Amendment should supersede
the 20th in regards to Presidential succession if there’s no certified election by Inauguration
Day, January 20, 2021. Current sitting Vice President Mike Pence (R) could become the 46th
President of the United States if there’s no certified results, and serve for the next four
years, provided he doesn’t resign the Vice Presidency beforehand. Twenty years ago, then-
Vice President Al Gore (D) would’ve been President if the Florida recount litigation stalled
until Inauguration Day.


Constitution Day
September 17, A.D. 2020