OK, Here’s What You Need To Know About The Whole Pelosi As President Poli-Sci Fantasy

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September 22, 2020 3:22 p.m.

The idea of House Speaker Nancy Pelosi (D-CA) ascending to the presidency seems outlandish, little more than a Fox News fever dream or #Resistance fan fiction. 

But it’s not entirely impossible — and, ironically, could be made marginally more likely by a last-minute attempt by President Donald Trump to muck with the election, a possibility that scholars, journalists and the general public has begun to game out.

Though it would require some serious planetary alignment, there are mechanisms that could propel Pelosi to the presidency, should a scene from political science fiction materialize: picture a deadlocked Electoral College, or a litigative slog reminiscent of the 2008 Franken-Coleman Senate election, with legal teams scrambling to sort out the winner while Trump sits cross-armed in the Oval Office. Trump himself has even fretted about the possibility (though he wasn’t quite right about the mechanics of how it would work). 

Here’s how we could end up crossing into the political Twilight Zone. 

Scenario #1: Biden and Trump deadlock at 269 electoral votes apiece

An exact tie would be freakish, stunning — but not quite impossible. Say Trump loses Michigan, Pennsylvania and Nebraska’s 2nd Congressional District to Joe Biden, but holds everything else he won in 2016; or what if Biden wins Arizona and Iowa, but loses Michigan and Wisconsin? The Constitution requires that the winning candidate get an “absolute majority” of electoral votes, or 270. 

A draw would trigger a “contingent election” once the new Congress is sworn in in January, a process established by the 12th Amendment and tweaked by the 20th. Every state delegation in the House would get one vote for the top three presidential candidates — presumably Joe Biden, Donald Trump and the third party candidate who accrued the most votes. Right now, Republicans have more state delegation majorities in the House, despite the fact that Democrats have more members in totum. (That could also change depending on how the 2020 elections shake out.) The most likely situation here is that the party with the majority of state delegations picks its president and that’s that. So, if the make-up of the House is similar to what it is now, Trump would likely win. 

But — what if Democrats pick up a few delegations in the 2020 election and Republicans lose a few, leaving the House split right down the middle? In this case, the House has failed to pick a president, and the camera pans to the Senate. 

There, each senator gets a vote for who would be vice president, the de facto president if the House fails to pick one. Currently, Republicans have a slim majority there too. But, as is currently being battled out in Montana, Colorado, Maine, etc., Democrats could make gains in November to claw some seats back. Imagine they successfully won back three seats and the chamber was now a 50-50 split. If everyone voted the way they’d be expected to, it’s another tie. 

Under the Constitution, Trump and Vice President Pence must leave on January 20. If Congress fails to pick a new president, Pelosi, the third person in the order of succession, would ascend.

Note: there have been three contingent elections in U.S. history, and none has double deadlocked. 

Scenario #2: A long, litigious morass inflamed by Trump’s conspiracy theorizing

Say that on election night, the race is extremely close — a 2000 Bush-Gore situation. Suppose that this time, the race hangs on Pennsylvania, leading to a “morass of certifications and court orders that leaves Congress with a choice of which result to accept,” as Brian Kalt, law professor at Michigan State University, put it to TPM.

According to the Electoral Counting Act of 1887, electors must be chosen no more than 41 days after Election Day — by December 14, in this year’s case. Now, in this weird pandemic year, it’s guaranteed that some states, buried under an avalanche of mail-in ballots, will take more time than usual to reach their final vote tallies. During Pennsylvania’s June primary, Philadelphia, for instance, took over two weeks to count all of its votes. Election officials in the commonwealth, while hoping for a quicker turnaround than the summer election, are largely in agreement that it’ll at least take a few days. 

So let’s take that example and use it to paint a nightmarish hypothetical. Say November does see a June repeat, and votes in Philadelphia, a Democratic stronghold, come in particularly slowly. That delay, plus the fact that 64 percent of Democrats intend to vote by mail versus just 10 percent of Republicans, makes for a reasonable possibility that, in this key state, Trump will be ahead on election night with a lead Biden at least chips away at, if not overcomes, as more ballots are counted in the following days.

While the days slip by and the count continues, Trump will likely fan the flames of the doubts he’s been sowing for months: that mailed ballots are unreliable and the system rife with fraud. If Biden pulls ahead, Trump could be even more likely to claim election tampering. 

Say ballots are tossed and lawsuits are filed — now the count is ensnared in the courts. Even with an expedited process, December 14 could come and go without a judicial decision.

At that point, it’s unclear how electors would be selected.

While currently, every state appoints electors based on the popular vote, there is no constitutional mandate for them to do that. In fact, states are given extremely broad latitude: electors, according to Article II of the Constitution, shall be appointed “in such manner as the Legislature thereof may direct.” The Supreme Court has since confirmed twice (once during the 2000 Bush-Gore showdown) that states can revert back to directly appointing electors if they wish.

So: Pennsylvania’s Democratic governor and secretary of state might pick a slate of electors based on the popular vote. But Pennsylvania’s Republican-led general assembly could clings to its constitutional right and Trump’s claims of voter fraud, and present its own competing slate of Trump-friendly electors.

Assuming that the majorities of the House and Senate remain the same after the 2020 elections as they are now, it’s a stalemate. There is no clear legal consensus on what to do at this point — whether Pennsylvania’s electoral votes should be removed from the equation and leave the winner of the remaining electoral votes as president, or whether a candidate still needs 270 to win. 

If the latter, a contingent election is triggered. Which brings us back to scenario one.

Scenario #3: Trump tries to delay or cancel the election

Trump has already floated delaying the election “until people can properly, securely and safely vote.” While he can’t delay or cancel the election outright without Congress passing a new law, he could theoretically strong arm Republican state legislatures into circumventing their state’s election.

As explained in scenario two, it would be constitutional, if wholly undemocratic, for Republican legislatures to forego the election and assign the electors to Trump.

It’s unclear if governors could veto such a move. Critical swing states — Pennsylvania, Michigan, Wisconsin — all have Democratic governors who would quash the maneuver if they could, even if the GOP legislatures were game to play along. Governors have to send a certification to the Archivist of the United States, but it’s unclear what would happen if the governor refused to, or sent a certification at odds with what the legislature finagled. 

The Constitution is clear that “the terms of the President and the Vice President shall end at noon on the 20th day of January.” That would, normally, elevate the speaker to the presidency.

Except, there’s a deeper, even less likely level of the hypothetical. Pelosi is up for reelection this year too — so if there were no congressional elections by January, she is also out of office. All of a sudden, Senate President Pro Tempore Chuck Grassley (R-IA) is the highest-ranking official left. But without reelections taking place, the Senate would be hollowed out and Democrats would have a majority of the seats remaining, allowing them to essentially pick a new Senate President Pro Tempore — who would then become the new president. Some states do let their governors appoint temporary replacement senators, but many states’ lines of succession would also be disrupted by the lack of election.

Bonus Confusion: Fighting over the line of succession

In case the combination of archaic laws and far-fetched election scenarios hasn’t yet made your head spin, here’s a fun fact. There is intense scholarly debate around if the speaker is rightly third in the line of succession in the first place. According to the Presidential Succession Act of 1947, she is. But, the Constitution’s Succession Clause asserts that only an “officer” can succeed the President, a term many scholars think does not apply to a member of Congress. That confusion could hypothetically set up a nightmare scenario where both Pelosi and Secretary of State Mike Pompeo have grounds to claim themselves next in command. Fun! 

In the end, chances of any of these situations happening are very, very, very tiny. The presidential election would have to be breathtakingly close, and a lot of Republicans would have to be willing to go along with Trump’s strong-arming. It’s worth noting, though, that in a country special because of its smooth transitions of power, it only took one President choosing to favor his own reelection over the safeguarding of critical democratic norms to bring these nightmare scenarios into the realm of discussion, and a bit closer to reality than they ever have been before.

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