Clinton Defense Sec: Trump Still Has 20% Chance to Win Election Despite Media Calls https://t.co/ztqnlFD420
— President Elect Raheem Kassam (@RaheemKassam) November 12, 2020
Graham Allison, who served under President Bill Clinton as an Assistant Secretary of Defense for Policy and Plans, wrote an opinion piece for the National Interest entitled “Donald Trump’s Stealthy Road to Victory”.
In it, he argues President Trump has a “viable yet stealthy path” to a second term in the White House. That path, says Allison, rests on disputed electoral votes and the 12th Amendment to the Constitution.
Contested outcome scenario built upon a dispute Pennsylvania result.
- A conceivable contested election could involve multiple states’ electoral votes, but Pennsylvania’s 20 electoral votes would almost certainly figure into such a scenario.
- 1876 precedent: Coincidentally, in the contested election of 1876 between Democrat Samuel J. Tilden and Republican Rutherford B. Hayes —the best precedent available for a possible contested 2020 election (not the 2000 election)—20 electoral votes were under dispute, albeit from four different states: all electors from Florida, Louisiana, and South Carolina, and one elector from Oregon.
- House of Representatives Office of the Historian: “Both Tilden and Hayes electors submitted votes from these three states, each claiming victory in violent and confused elections. The Democratic-controlled House and the Republican-dominated Senate came to a compromise on how to resolve the problem by creating an Electoral Commission: a bipartisan committee of House Members, Senators, and Supreme Court Justices who would determine the final disposition of the yet-unassigned electoral votes…[Beginning on Feb. 1, 1877], Congress met in a Joint Session 15 times in the next month, until—acting on the decision of the commission—it awarded the disputed vote to Hayes, granting him the victory by one vote.”
- The resolution was decided via a backroom deal in which the Republicans agreed with Democrats to end Reconstruction in return for winning the presidency.
- In a contested 2020 election, Pennsylvania’s Democratic governor and Republican state legislature could send competing electors to be counted at the Jan. 6, 2021 joint session of Congress.
- Similar to 1876, the Republican Senate and Democratic House would disagree on which electors to accept. However, in the media environment of 2020, it would be virtually impossible for the two houses of Congress to reach a backroom deal to resolve their dispute as happened in 1876.
- Democrats would argue that the Electoral Count Act of 1877—passed in order to avoid a repeat of 1876—favors the electors certified by state governors; in this case, the Democratic governor of Pennsylvania certifying electors voting for Biden.
- Republicans, on the other hand, would argue that the Electoral Count Act is unconstitutional, as the Constitution clearly allows state legislatures to certify electors; in this case, the Republican state legislature of Pennsylvania certifying electors voting for Trump.
- Under the Constitution, there exists no mechanism to resolve a dispute in which the two houses of Congress cannot agree upon a certified set of electors, and there is no Constitutional role for the courts, including the Supreme Court.
- Republicans, supported by legal and historical precedent, would argue that under the language of the 12th amendment, which reads, “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted,” the President of the Senate—Vice President Mike Pence—has the sole discretion to break a deadlock between the Senate and the House, and to either accept or dismiss disputed electors.
You can read Allison’s article in its entirety here.