If you’ve seen the musical “Hamilton,” you know that dramatic events surrounding our national politics are nothing new. Aaron Burr and Alexander Hamilton had a long-time rivalry that culminated in a duel… an actual duel… while Burr was still Vice President of the United States!

Imagine something like that happening today!

Our nation has had its share of contested elections.

  • Burr and Thomas Jefferson in 1800 had received the same amount of Elector votes in the Electoral Collage, and therefore the House of Representatives had to vote on who was to be the victor (Spoiler alert: Jefferson won, and Burr became the Veep).
  • In 1876, a decade after the Civil War, Democratic voter intimidation of black Republican voters in several counties caused many issues, including non-certification of results in three states and competing Elector rosters being sent to the Electoral College!
  • In 2000, the contest between George W. Bush and Al Gore came down to a single U.S. Supreme Court decision regarding ballots in Florida.

And even if things go swimmingly, the media doesn’t always get it right. If you paid attention in U.S. History class you may recognize the famous Chicago Tribune headline “Dewey Defeats Truman” ironically being held up by a victorious Harry S Truman. Then, in 1960, using those new-fangled things called “computers,” NBC projected John F. Kennedy as the winner because they thought he won California, which turned out to be wrong; Nixon actually won California. Kennedy ended up becoming President anyway, so NBC was safe in the end, but getting California wrong, with so many Electors, was a huge deal.

America has come back from all of these situations. The Constitution is an incredibly resilient document and the American people have always taken crises in stride.

Would this be the case today?

Note: This article does not do the whole Trump vs. Biden thing (there’s enough of that on the internet already :-)). If I refer to them, it’s within the context of the article, which focuses on:

  • The Constitutional process for electing the President,
  • Some history regarding the media’s engagement with Presidential elections of the past,
  • The cultural implications of “calling” the Presidential election before the completion of the process, and
  • The possibility of the media calling it wrong in today’s fractured and divided nation.
This is the Preamble to the US Constitution, It starts with the phrase We The People and shows only some of the writing from the upper left hand corner of the document of the Constitution, It is written on parchment paper that is now faded, showing its age. (Photo by: Joe Sohm/Visions of America/Universal Images Group via Getty Images)

The Constitutional Process

If you want to see for yourself what the Constitution says about the Presidential election, feel free to read the Constitution for yourself here: 2007 Congressional Published Version. Also, if any of you sees any mistakes, please comment them below so I can fix errors. The relevant Constitutional excerpts are:

  • Article II, Section 1, Paragraph 2
  • Amendment XII
  • Amendment XX – this is not crucial for our discussion, but it is interesting as it fleshes out some specifics of the electoral process left open in Amendment XII.

State Legislatures Send the Electors

First things first. How is the U.S. President elected?

Here’s what the Constitution lays out for the election of President and Vice President.

Each State shall appoint, in such a 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…

Article II, Section 1, Paragraph 2

Right off the bat, we notice something interesting that most people don’t know.

Most people have heard of the Electoral College. Yet many people don’t realize that the Constitution doesn’t stipulate how Electors are chosen by state legislatures, only that they are. Therefore, the decision is ultimately the state legislatures’ to make. States have simply chosen to use a popular vote to determine which slate of Electors will participate in the Electoral College.

Does this mean that state legislators will go against the will of the people and send Electors that will vote contrary to the Election Day results? Probably not. Even though it’s Constitutionally possible, it’d be political suicide for legislatures to do such a thing.

Also, “faithless” Electors are possible but rare. Recently the U.S. Supreme Court weighed in on Electors’ votes, allowing state laws that “remove or punish” “faithless” Electors. However, at the end of the day, Electors still vote for whomever they choose, whatever the consequences. This is why each Party vets and scrutinizes their slate of possible Electors; each Party knows how their Electors will vote should they be chosen to be a part of the Electoral College.

Since state legislatures use the Election Day popular vote as their metric for determining which Electors to send, certification of those results is very important.

However…

When presented with uncertain or compromised voting results, state legislatures’ hands are not tied under the Constitution. Depending on their laws, they might:

  1. Vote within the legislature on which Electors they’ll send, or
  2. Choose not to send Electors at all!

This is why lawsuits challenging county and state results are legitimate tactics for any Presidential or Vice Presidential candidate. If it becomes clear to a state legislature that their popular vote is uncertifiable during the course of an investigation, they can decide on the slate of Electors without the popular vote’s result.

The Electors’ Votes and State Certification

It’s also important to think about the process of the Elector vote once they’re in the Electoral College. Technically, they don’t even need to go to D.C., which I’ve always thought! They could simply courier their votes to the President of the Senate!

The Electors shall meet in their respective states and vote by ballot for President and Vice-President… they shall name in their ballots the person voted as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

Amendment XII [part 1]
Pretty helpful video, discussing the history and process of the Electoral College.

Certification of Electoral College Results by Congress

The next part of Amendment XII outlines the certification process of state ballots and certificates by the U.S. Congress. This is when the President and Vice President for the next term are officially declared.

– 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 person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

Amendment XII [part 2]

Now, here’s the really interesting part. If there is not a majority of Electors appointed (in 2020, that would be 270), then there is a further process involving the Congress:

…and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all states shall be necessary to a choice. … The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. …

Amendment XII [part 3]

If several states cannot certify the results of their popular vote, and they decide not to send any Electors, it is entirely possible that there won’t be enough electoral votes to decide who is President or Vice President if the race is close enough.

The crazy thing to me is that, if it falls to the House and the Senate, you could have a President from one party and a Vice President from another! This was news to me when I looked all this up.

Media Coverage in November: “President-elect” vs. “Presumptive President-elect”?

When one understands the Constitutional process, one might question the media’s overt declaration of a Biden-Harris victory. Technically, if a candidate for President or Vice President does not concede and enters the legal challenge phase of the election process, there is no veracity to claiming a “winner” in any certain terms. Knowing who will probably be chosen by the Electoral College is not the same as knowing for sure what the outcome will be.

To pretend otherwise is irresponsible; hence the appropriate terms “Presumptive President-elect” or “Projected President-elect.”

By adding words like “presumptive” or “projected,” a news outlet can acknowledge the probability of the end result while simultaneously affirming the reality of the Constitutional process.

Consider these news stories:

I am not making a comment on the veracity of any of these articles or making any kind of judgment call about any of them. That is outside the scope of this article. My point is: within each article, Joe Biden is referred to as “President-elect.” References to Trump “overturning the election results” or Trump’s “election loss” are common.

[As an aside, while I actually chose these articles because of their use of the term “President-elect Joe Biden” in each of their first paragraphs, I just realized that all of them use “Biden win” in the title, which only further illustrates my point!]

This, my friends, does not reflect reality. Though a Biden-Harris win is probable, if Trump has not conceded or exhausted his legal paths to victory, it is not certain yet.

Our kids need to know how to be citizens in a Republic.

While most understand this, many won’t, especially considering the state of America’s education system and the decline of Civics Education around the country. Many younger folks won’t know that the vote which actually determines who will begin serving as U. S. President in January 2021 doesn’t happen until December 14th, when the Electors from the states vote. They don’t know that this vote is then certified on January 6th by the House of Representatives and Senate, provided there are no legal challenges to be made. That is technically when we can start officially calling a candidate the “President-elect.” [Here is a short, concise Business Insider article on the process.]

Now, I understand why the media and the public at large don’t see a problem with any of this. For decades, Americans gave become accustomed to knowing who their next President will be by the morning after Election Day. “Calling the race in _____” and “the projected winner will be” have now become time-honored traditional utterances on CNN, Fox News, MSNBC, etc.

Further enforcing this tradition is the Election Night concession phone call. When a candidate sees their imminent projected loss in the Electoral College, they will traditionally concede the race in a gesture of reconciliation and solidarity.

Yet, if the “loser” doesn’t concede (or even if they do!), and the legal process is engaged, the only accurate description you can use for the probable winner is that they are the “presumptive” or “projected” President-elect.

And this should be fine. Americans traditionally have rolled with this aspect of our political system, understanding the necessity of being able to air grievances in a court of law. The common trope “I’ll see you in court!” seems to me like a crude philosophical endorsement of law and order by everyone in America who’s ever felt wronged. This process ought to be celebrated as an underpinning of the democratic process, not an undermining of it.

But is it fine?

Consider These Scenarios

Let’s think through this.

Let’s say a seemingly losing Presidential candidate does not concede and instead engages in a “lawfare” campaign to win the Electoral College. The media, for whatever reason, declares in no uncertain terms (inaccurately, as we’ve determined) that this candidate in fact lost the election and that his/her machinations were bulldozing democracy, among other things.

Not too hard to imagine, ja? 🙂

Now imagine one of these scenarios:

  1. The Electoral votes are counted and the media-declared “losing” candidate is in fact declared the winner.
  2. On December 14th, the Electoral College ends up voting for the presumptive winner. Then, serious impropriety comes to light on December 17th or so. This problem is so severe that, after some thorough investigation, Congress decides to reject the Electoral certifications on January 6th.
  3. Neither candidate gets a majority of Elector votes to win outright, causing Congress to determine the President and Vice President, just like in 1800.

With an informed electorate and responsible media outlets, these rare yet entirely Constitutional events would be a source of political intrigue for decades… but nothing more. Americans would all move on with their lives.

But ask yourself:

  • Do we have an informed electorate that understands the purpose and process of the Electoral College?
  • Do we have a media apparatus (including social media) that values truth over profits?
  • Is it 2020, the most dumpster fire year ever?

These are questions for all of us to consider. If these entirely Constitutional scenarios come to pass this year, would we as a society be able to absorb them as Americans have in the past? Or not?

Regardless of how you may feel about the Electoral College or the popular vote’s place in our republican system of government, these institutions are what we have right now.

I also want to be clear: I’m not saying any of these scenarios are likely to happen; Joe Biden will probably be our next President.

But if Donald Trump somehow pulls off a lawfare victory in the Electoral College despite the media presenting a reality in which that isn’t even possible…

What happens then?

And here’s the bigger question:

What would you do?

Sorry for low audio. This TEDx Talk is fantastic.