Daily Times

Two tragedies and two laws could very likely turn the forthcoming presidential election into a January Nightmare that directly threatens the Constitution and the American political system. And the New York Times’ release of President Donald Trump’s tax returns add another level of uncertainty to the election.

CoronaVirus/Covid-19; the death of Associate Justice Ruth Bader Ginsburg; the Electoral College Act of 1887; and the Presidential Succession Act of 1947 are now ingredients in a potential political nuclear time bomb made even more destructive by the worst toxic and divisive partisan environment possibly since 1860.

Why? First, the pandemic means much of the voting for all offices will be by mail. No matter how efficiently carried out, many races will be hotly contested and probably massively litigated. Weather and other environmental disasters could also affect voter turnout. It could take weeks or longer to resolve not only vote count but the legal challenges to candidates for both Houses of Congress and the presidency.

Despite the political firestorm over the urgency to confirm Justice Ginsburg’s successor, that vote will take place possibly before the election giving the president a 5-4 and possibly 6-3 majority depending upon how the Chief Justice votes. And make no mistake: there is a very good chance that the Court will decide the presidential election as it did in 2000.

In normal and abnormal times, presidents are elected in one of three ways: The Electoral College where at least 270 votes are needed: the House of Representatives if the Electoral college is stymied; or as in 1876 when both paths were blocked, a Congressional compromise whereby a fifteen man commission chose the winner.

With a highly contested election, only the most powerful incentives or equally strong forces could induce a deadlocked Senate to decide on a vice president

The Electoral College Act of 1887 determines how electors are determined, by whom and who is or is not seated. Yet given many unresolved ambiguities in that Act over each of these questions, almost certainly there would be major legal battles challenging interpretation of this law

In the House, regardless of size of delegation each state gets a single vote for president. Twenty-six votes are needed provided a quorum of 2/3 or thirty-four states is present. If the 117th Congress maintains the same composition, Republicans will hold that majority. Democrats however could boycott to prevent a quorum. But in those circumstances could litigation force the Supreme Court to intervene to order a quorum?

Concurrently, the Senate picks the vice president. A 2/3 quorum of 67 members present is required, again subject to a boycott. Senate rules do not state how or if a quorum may be ordered. But be assured if there were a majority party, it would try to find a parliamentary workaround or loophole to choose their candidate. If the House cannot determine a winner, and the Senate has selected a vice president, that person becomes acting president.

With a highly contested election, only the most powerful incentives or equally strong forces could induce a deadlocked Senate to decide on a vice president. Perhaps if it were clear that one or the other of the candidates was certain to win and the Senate were controlled by the same party, then electing the vice president has a certain logic. And if the Senate were divided 50-50, would the vice president, who is President of the Senate, cast the deciding vote?

If there is no president or vice president to assume that office, presumably the 1947 Presidential Succession Act applies in which the Speaker of the House is next in line followed by the Senate President Pro Tempore. But that act would likely be challenged on several legal grounds, whether justified or not, questioning the legitimacy of the Speaker to become acting president when this president’s term expires on January 20th.

Under certain bizarre circumstances and if an 1876 Compromise-like solution cannot be found, the United States could be without an elected or acting president. There is no rule book for this contingency. One other possibility, admittedly remote, could resolve a deadlock.

If the Senate could agree on a vice president, that person would become acting president until the election were resolved providing continuity. That could risk a split ticket with a president and vice president of different parties. Some might (idealistically) argue that would be one means of closing the intense partisan divide.

A combination of unprecedented events and ambiguous law will test the Constitution and make this election unlike any in the nation’s history. January 20th, 2021 could arrive with no obvious means of breaking these possible deadlocks. A conclusive electoral victory by either presidential candidate would be in the nation’s best interests. Should that not happen, the nation too easily will be in for a January nightmare.

Dr Harlan Ullman is Senior Advisor at the Atlantic Council. He has been a Professor of Military Strategy at the National War College and a Distinguished Visiting Professor at the Naval War College. His next book is The Fifth Horseman: To Be Feared, Friended or Fought in a MAD-Driven Age.