Between stories on the net and questions I’ve been asked over the last week, it seems a significant number of Americans are obsessed with the idea that Nancy Pelosi could become President on January 20th, 2021. So I decided we should settle the hysteria and look at the facts of what would happen if there’s a problem with the Presidential election.
20th Amendment
All of the articles I’ve seen claiming that if there’s a problem with the election, Nancy Pelosi becomes President on January 20th stem from language in the 20th Amendment to the Constitution.
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
U.S. Constitution, Amendment XX – Section 3
A quick look at the language in this amendment lets you see where these claims arise that Nancy Pelosi will become President. Before I get into the idea of a President not being chosen, let’s take a closer look at what would happen if that is the case. If there is no one chosen and qualified for President by January 20th, then the role of choosing who comes next belongs to Congress. According to 3 USC §19: Vacancy in offices of both President and Vice President; officers eligible to act, the next in line of succession is the Speaker of the House. Hence, some people claim, President Pelosi. There is one little problem for Ms. Pelosi though:
If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
3 USC §19
Yes, Ms. Pelosi would act as President, but she would need to resign both her positions, as Speaker and Representative before she could assume the position of Acting President.
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified;
U.S. Constitution, Amendment XX – Section 3
The first problem we run into is with how we hold our elections. The Presidential and Vice Presidential elections are supposed to be separate.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President,
U.S. Constitution, Amendment XII
The electors are supposed to cast separate votes for President and Vice President. However, since the political parties have so manipulated the system by which electors are chosen, this separate ballot has become a facade, complying with the letter of the law while ignoring its purpose. If we held constitutionally sound elections for President and Vice-President, this would be less of an issue, but it does not fix the problems some are predicting today.
Notice, if there is a problem with the President Elect or if one isn’t chosen, someone else does not become the President; they merely act as President until the problem can be resolved. This is no different than if both the President and Vice President are unable to perform their duties. Once a President has been chosen and qualified, they would assume the office. And since the Speaker of the House would have to resign before taking the role of Acting President, they would no longer have a position in the government.
How Could This Happen?
If we want to understand what would happen if there are problems on Election Day, we need to understand the actual process by which the President is elected.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
U.S. Constitution, Article II, Section 1, Clause 4
Article II of the Constitution gives Congress the power to determine when electors are to be chosen and when they are to give their votes. Congress has set the time for the choosing of electors to be the Tuesday after the First Monday in November, every fourth year. What we commonly call “Election Day”.
The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.
3 USC §1
This is not the day the electors vote, it is the day they are to be appointed. The date they vote is set to the first Monday after the second Wednesday in December.
The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.
3 USC §7
So on “Election Day”, the states hold elections to determine the appointment of electors. Then on the Monday after the second Wednesday in December, these electors meet in their states to vote for President and Vice President. What happens if there is a problem with the election? What if the electors aren’t appointed in time to vote? The answer makes a lot of sense if we remember that it is the states who vote for President, not the people.
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.
3 USC §2
So if your state has a problem with the election of electors, your legislature should already have a process for appointing them before they are required to vote for President and Vice President. What happens if the vote is contested? After all, one of the major reasons people are concerned comes from a lack of trust in mail-in voting. Again, we need to remember that it is the states voting for President.
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.
3 USC §2
Your state should have laws about how to deal with issues with the appointing of electors. As long as those processes are followed and completed at least six days before the electors are to meet, your state’s laws resolve any issue.
Problems with Electors Votes
There are potentially two ways the votes of a state’s electors are not counted. First, the state can fail to send in their certificate of votes to the Senate.
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;
U.S. Constitution, Amendment XII
Federal law (3 USC §9) requires certificates be sent to the President of the Senate, the Secretary of State, the Archivist of the United States, and the judge over the district where the electors assembled. However, the Constitution only requires that the certificate be sent to the President of the Senate.
The second way the elector votes cannot be counted is if they are challenged by both a member of the House and Senate, and only when the certificates are unsealed and read.
Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received.
3 USC §15
There is a problem with this method of challenging the votes of electors. Nothing in the Constitution gives Congress the authority to judge the vote of an elector; Congress only has the authority to judge the elections of its own members.
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,
U.S. Constitution, Article I, Section 5, Clause 1
Since there is no legal authority delegated to Congress to judge the election of the President, this part of 3 USC §15 is unconstitutional, and therefore illegal and void.
What would happen if a significant number of electors were not appointed in time to cast their votes? The answer comes from the Constitution itself:
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; 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.
U.S. Constitution, Amendment XII
The Constitution states that the person getting a majority of the votes for President shall be the President. (The same is true for the Vice President.) Not the majority of electors, but the majority of electors appointed. If no one receives a majority of the votes, the decision for who will become President devolves to the House of Representatives. Before you run screaming in either joy or panic though, there is one little catch to the this process:
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 the states shall be necessary to a choice.
U.S. Constitution, Amendment XII
In the case where the choice for President devolves to the House of Representatives, each state gets one, and only one, vote. And they keep voting until someone gets a majority of the states to vote for them.
If a state does not submit their certificate, they don’t get their vote. This is nothing new. In fact the withholding of electoral votes has impacted Presidential elections several times in our history.
Conclusion
What does all this mean? Is it possible for Nancy Pelosi to become Acting President on January 20th? Technically, yes. If none of the states submit their certificates to the Senate by January 6th, there will be no votes and therefore no majority for someone to win. The decision cannot devolve to the House, since there are no names of the top three vote getters to send them. But if even one state submits their certificate, there are votes to be counted and a President Elect chosen.
The other possible scenario where a President has not been chosen, is if members of both the House and Senate object to the votes of each and every state. The term for such shenanigans is called a “coup d’etat”, the overturning of the legitimate government.
a sudden decisive exercise of force in politicsespecially : the violent overthrow or alteration of an existing government by a small group
Coup d’état – Merriam-Webster Dictionary
While it’s possible, I find it highly unlikely. Not only would the turmoil over the validity of the election make the 2000 Bush v. Gore challenge look like a child’s temper tantrum, I believe the mass disenfranchisement of each and every state in the union would lead to a civil war. I for one believe it would qualify, under the standards of the Declaration of Independence, as justification for the abolishment of the federal government.
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
Declaration of Independence
I pray that our servants in Congress are not foolish enough to attempt such an action. If they do, the American people have no one to blame but themselves for hiring such ignorant, reckless, and corrupt people to represent their powers.
“Now more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless and corrupt, it is because the people tolerate ignorance, recklessness and corruption. If it be intelligent, brave and pure, it is because the people demand these high qualities to represent them in the national legislature.”
James A. Garfield
