For the right, Amy Coney Barrett’s Supreme Court nomination seals the deal on a conservative majority for years to come. To the left, it’s a rushed political attempt to undo abortion rights and Obamacare.
Trump, too, has taken notice of the obscure constitutional resolution to a deadlocked Electoral College, both in public and private.
“And I don’t want to end up in the Supreme Court and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress — does everyone understand that?” Trump said at a rally in Pennsylvania on Saturday. “I think it’s 26 to 22 or something because it’s counted one vote per state, so we actually have an advantage. Oh, they’re going to be thrilled to hear that.”
In private, Trump has discussed the possibility of the presidential race being thrown into the House as well, raising the issue with GOP lawmakers, according to Republican sources.
Under the Constitution, the winner of the presidential election isn’t officially chosen until Congress certifies the Electoral College vote total on Jan. 6, 2021. That vote comes several days after the newly elected Congress is sworn in, meaning the delegation totals will change to reflect the winners of House races in November.
If neither Biden nor Trump has secured the 270 electoral votes required to win, the newly seated House delegations will then cast votes to determine a winner. States whose delegations reach a tie vote are not counted.
But it’s more than a math equation. If the House is asked to resolve an Electoral College stalemate, the country will be witnessing one of harshest exercises of raw power in history. If Democrats retain control of the House, they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.
An informal whip count has already begun. Democrats hold a one- or two-vote seat edge in seven states that are expected to feature at least one sharply contested House race: Arizona, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire. Republicans hold a similarly tenuous edge in Florida. The Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally.
Pennsylvania’s House delegation is split evenly between the parties, but Democrats are expected to pick up seats after a redistricting that blunted some GOP advantages. Michigan is a wildcard as well, despite the slight Democratic edge in the delegation makeup. Amash, an independent who supported Trump’s impeachment, is retiring, with his seat likely to go to a Republican Trump ally who would leave the delegation deadlocked.
A Democratic Party strategist said the party apparatus was still primarily focused on protecting Democrats in vulnerable districts. But winning state delegations is also on the radar — especially in states where the efforts align.
“It is fair to say that this is something that folks have been thinking about,” the strategist said. “There is a great deal of overlap like Alaska, Montana.”
Sarah Ferris contributed to this report.