With the rise of mail-in ballots, many observers have predicted that the winner of this year’s presidential campaign won’t be known until well after election night. Fox News congressional correspondent Chad Pergram noted in an article on Monday how President Trump has warned that “crazy Nancy Pelosi would become president” if the election results are not known by year’s end.
“A lot of things must first spill off the rails for Pelosi to head to 1600 Pennsylvania Avenue,” Pergram explained.
Constitutional law professor: “It’s kind of a nightmare”
“But,” he conceded, “election and congressional officials are starting to worry about what could unfold this fall and winter if they struggle to determine whether President Trump or Joe Biden prevails in battleground states.”
Pergram noted that many Americans believe November 3 is the crucial date for deciding the elections’ ultimate outcome. However, he explained that “a more crucial date is December 14, dictated by an obscure, Byzantine 1887 law: The Electoral Count Act.”
“It is kind of a nightmare of convoluted verbiage,” Pergram quoted Ohio State constitutional law professor Edward Foley as complaining. “I’ve studied that piece of text for years now,” he added. “I wouldn’t be honest to say that I completely understand it. It’s just impenetrable.”
Passed following the disputed presidential election of 1876, it stipulates that states must pick electors within 41 days of the election, and Pergram observed that it establishes a “safe harbor date so states conclude vote counts and establish electors early.”
“But,” he asked, “what happens if there are problems with the mail? The cryptic nature of the statute could give some states the green light to continue to counting – or cease counting.”
Pelosi presidency a last resort
Pergram said that in the event that a state sends inconsistent slates of electoral votes to Washington, the new Congress would need to “hammer all of that out in January 2021.”
Yet “if Congress hits an impasse when certifying the electoral college,” he wrote, then “the 12th Amendment directs the House to elect the president,” something called a “contingent election.”
In that process, each state delegation is entitled to one vote. At present, Republicans hold 26 state delegations while Democrats have 22, which means that the GOP could select the president even if Democrats retain their House Majority.
If Congress cannot reach a decision by January 20, then this is “where the 20th Amendment and the Presidential Succession Act kicks in” and the House speaker becomes “acting president.” Yet as Foley pointed out, “We’ve never had an acting president. That would be new and disconcerting.”
A “President Pelosi” in the White House is, fortunately, an unlikely scenario. In fact, Republicans are doing their best to oust her as Speaker — though it’s a long shot. On Tuesday, House Minority Leader Kevin McCarthy released a 17-point agenda that Republicans hope will help them build momentum to retake the House in November.