“They should have sent it back to the legislatures for approval,” former president and Republican nominee Donald Trump said during the Sept. 10 presidential debate with current Vice President and Democratic nominee Kamala Harris. Trump was referring to the results of the 2020 election, which he has repeatedly claimed were “rigged” against him. But what exactly did the former president mean by sending it “back to the legislatures?”
As most Americans know, we live in an indirect democracy where the president and vice president are not elected through popular vote but rather through a system known as the Electoral College. The winning presidential ticket must have a majority of these 538 electors. However, because 538 is an even number, there could theoretically be a tie. In such an event, the selection of the president and vice president falls to the House and Senate respectively. Complicating matters further, in the House, the votes for president of the 435 members are not counted individually but rather on a state-by-state, winner-takes-all basis. So, for example, if eight of Ohio’s 15 representatives vote for the Republican candidate and only seven for the Democrat, Ohio will cast a single vote in favor of the Republican. Since there are an even number of states, this could result in an even split of 25–25. The Senate, too, has an even number of members, so the vote for vice president can also end in a tie.
Under the Presidential Succession Act of 1947, in the event of a tie at the House, the vice president selected by the Senate becomes acting President until a majority can be achieved. In the unlikely event that there is also a tie at the Senate, no vice president will have been selected, so the role of acting president falls to the newly sworn-in Speaker of the House.
This unlikely convergence of split votes at the House and Senate is the only instance in which the legislative branch gets involved in settling the results of a presidential election. But in 2020, there was no tie at the Electoral College; Biden won a majority. So why did Trump suggest that the legislatures should have gotten involved? Was he just expressing regret? Or perhaps signaling darker designs regarding the coming election?
Under normal circumstances, the task of certifying the election results falls to Congress to ensure that there have been no voting irregularities and that a peaceful, orderly transition of power may take place. But the historically contentious experience of the 2020 election, culminating in the Jan. 6 attack on the U.S. Capitol, requires a close look at how the 2024 election might go. Imagine, for example, that Kamala Harris wins the presidency, but the Republicans win control of the House and Senate. Now imagine that, as he did in 2020, Donald Trump contests the outcome. In this event, members of the House or Senate could contest certain states’ results on his behalf. If a single member of either body objects to the results, and the objection is signed by one-fifth of both offices (20 Senators and 87 Representatives), then Congress debates it and ultimately votes on it.
In this event, Congress does not have the power to formally reverse the Electoral College results, but an objection of this kind and its resulting debates can nonetheless have a significant impact on the outcome. If, for example, the House cannot come to a consensus before inauguration day, it is treated in the same manner as a tie in electoral results. The role of acting president falls to the vice president as selected by the Senate, and if the Senate also cannot come to a consensus, the role of acting president will fall to the Speaker of the House until the representatives can agree on a candidate. This means, for example, that Kamala Harris could win both the popular vote and that of the Electoral College, yet still be supplanted by Republican vice-presidential candidate J.D. Vance or whomever the next Republican Speaker of the House may be.
Perhaps this is what former president Trump was alluding to when he spoke those ominous words during the debate. Though it would require certain factors to fall into place, Trump and his faction of the Republican party, despite what the electoral votes could reveal, may attempt to challenge the results and inject confusion into the process, ultimately delaying the election to the point where, notwithstanding a victory by Kamala Harris, a Republican vice-presidential candidate or Speaker of the House could become acting president of the United States.
