The horrific nightmare scenario where Congress picks our next president

One thing I worry about is a contingent presidential election. That situation arises when no candidate gets a majority of electoral votes (270 of 538). Should this situation arise, Congress gets to pick the next president and vice president.

Yes, you read correctly, the 535 folks whom 80 percent of Americans dislike make these momentous decisions. Yes, these are the same folks who nearly shut down the government, who refuse to fix the broken immigration system and who have run up more than $33 trillion in debt. And who can forget Jan. 6, 2021, when some legislators refused to recognize states’ electoral slates and sparked a riot?

What could go wrong?

My smart readers might now rub their chins and reply, “Well, how likely is that scenario?” Some of them might even point out that there has not been a contingent election since 1824, when John Quincy Adams, Andrew Jackson and Henry Clay split the votes.

True, but the odds of it occurring are growing. Landslide victories (think Ronald Reagan vs. Walter Mondale in 1984 or Richard Nixon vs McGovern in 1972) are growing rarer. Four of the past six presidential elections have been very close. In 2020, had 44,000 voters in Georgia, Arizona and Wisconsin picked Trump instead of Biden we would have had a tied election (269 to 269).

Come the 2024 election, the chances of a contingent election may go higher still, according to a recent report from United to Protect Democracy. The reason is that No Labels, an organization that says its mission is devoted to bipartisan problem-solving, is threatening to run a third-party ticket. 

Whether they select Sen. Joe Manchin (D-W.Va.) or New Hampshire Gov. Chris Sununu (R) or some other heterodox figures to run, you can be sure it will be a serious ticket. Why? Because No Labels is a serious organization. They created the Problem Solvers Caucus in the House, and they are very good at fundraising. Already, the group has secured space for its “unity” ticket on the 2024 ballot in 11 states. And let’s not forget that there is public demand for something other than a Biden-Trump rematch. More than half of voters do not want Biden or Trump.

If No Labels pulls the trigger on this effort, it will be the most real third-party run in decades. For sure, I am sympathetic to their objective. But I am worried about the probability of it failing and the cost thereof.

Which brings me back to a contingent election. It seems highly unlikely that No Labels would outright win 270 electoral votes. There are just too many Americans who cannot imagine voting for anyone other than Trump or Biden. Alabama, Texas, Massachusetts and California — there are plenty of states where their choice for president is going to be whoever is on Team Elephant or Team Donkey.

Thus, the duty falls to Congress, and unfortunately, there is no law that specifies exactly how Congress should carry out its duty. All we have is the 12th Amendment, which has only broad procedural directives. If you thought the January 2021 counting of electoral votes was a trainwreck, you have not seen anything yet.

Legislators would have all sorts of incentives for mischief. A partisan majority in the House could, for example, choose its Speaker, then fail to decide who is the president by Jan. 20, which means the Speaker could become president, per the succession statute. Or, to take another possibility, a determined minority might thwart the House from choosing a Speaker, which leaves it unable to even take up the business of selecting a president.

Meanwhile, the Senate might slow walk its choice of the vice president should it be controlled by the same party as the House. Or if the Senate is led by a different party from the House, the upper chamber might rush through its choice of vice president so that he could ascend to the presidency. (The vice president is second in line and ahead of the Speaker.) Things get even crazier if the Senate president pro tempore decides she wants to be president. While the House dithers she might try to scuttle Senate action on the vice president and get herself elevated to the presidency come Jan. 20.

Whatever the results of the legislative scheming, a huge percentage of voters would feel disenfranchised by the mere fact that legislators did the choosing.

A reader might be mistaken for getting the impression that the authors of the Protect Democracy report would prefer No Labels to pull the plug on its presidential campaign planning. Doing that, however, would not foreclose the possibility of a contingent election.

My own preference is that Congress would take time to pass a statute to clarify the processes that each chamber should use to decide a contingent election. But the time for doing that is running short and the deeper we get into the presidential race the harder it will be to get legislators from both parties to work together.

In April 2020 I warned that the Electoral Count Act was a problem that needed to be fixed. Congress failed to act, and an intruder in a fur hat with a spear in hand sat in the chair of the Speaker of the House. I hope history does not repeat.

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the co-editor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform” (University of Chicago Press, 2020). He hosts the Understanding Congress podcast.