President Trump and President George W. Bush won the electoral vote during the election, but not the popular vote. How does the electoral college work?
The claim: If Donald Trump doesn’t concede and contests the results, the election will eventually be decided in the House of Representatives
Nearly two weeks after the election, President Donald Trump hasn’t conceded the race, even after former Vice President Joe Biden secured enough electoral votes to become president-elect by winning key battleground states.
According to at least one social media user, if Trump refuses to concede and continues contesting results, he might still have a path to victory.
“Here’s what happens, real, real simple. The most powerful thing that keeps the peace in the United States of America (concession) is not required by law; it’s just a custom,” Facebook user Shane Vaughn said in a video posted Nov. 8. Vaughn did not respond when USA TODAY reached out for comment.
It’s true that concession isn’t required by U.S. law, although no presidential candidate in modern history has refused to concede, USA TODAY previously reported.
However, Vaughn claims Trump has a “constitutional remedy to his dilemma” and, if Trump refuses to concede and contests the results in court to prevent them from being certified, the U.S. Constitution’s 12th Amendment will refer the decision to the House.
“This has happened twice in history,” Vaughn said. “I got a feeling it’s fixing to happen again.”
How the Electoral College works
The 12th Amendment does state that, in cases where no presidential candidate receives a majority of votes in the Electoral College, the House of Representatives will choose from among the top three candidates.
The Electoral College, established in Article II, Section 1 of the U.S. Constitution, is made up of 538 delegates who cast votes that formally elect the president. The electors are appointed by state parties to cast the electoral ballots about a month after Americans voted, USA TODAY reported.
It takes 270 electoral votes, the majority of the total 538, or more, to secure the presidential election. In 2016, Trump won with 304 electoral votes; the projected tally for the 2020 election puts president-elect Joe Biden at 306 electoral votes.
The number of electors represents the 100 U.S. senators, two per state, and the total number of U.S. representatives, 435, with three electors for the District of Columbia. The winner of the popular vote in each state gets the state’s electoral votes, except for Maine and Nebraska, which award votes proportionally, USA TODAY reported.
There are a few scenarios that would result in a presidential election going to the House, University of Iowa election law professor Derek Muller explains in a blog post:
- if there’s a tie in the Electoral College;
- if “faithless” electors don’t vote for the candidate for whom they pledged to vote;
- if the House rejects some electoral votes, resulting in neither candidate receiving a majority.
However, there hasn’t been a tie in the Electoral College since the 12th Amendment was passed in 1803 and ratified in 1804, and the other two scenarios have never happened, he noted.
In that event, each state has one vote, and while Democrats retained their control over the House this election, Vaughn claims the number of Republican-majority states keeps Trump’s reelection hopes alive.
“At that point, a Republican Congress will officially, constitutionally, vote in the next president,” Vaughn says in the video. “Why do you think Donald Trump has not conceded?”
For the session of Congress that starts in January, there will be 219 Democrats in the House, and 203 Republicans, with 13 seats still to be determined by close elections. Republicans hold a majority of state delegations, with 26 state delegations while Democrats control 22. Pennsylvania and Michigan are tied.
If the vote were to go to the House, it would take place in two stages. Members of Congress would vote by state delegation and the winner of each state would be determined by a majority of the state’s Congress members, USA TODAY reported. Then, votes for all 50 state delegations would determine the final outcome.
Experts say a House vote is unlikely
The House has decided two presidential elections, in 1800 and 1824. Congress also stepped in to decide the 1876 election, when Democrat Samuel J. Tilden won the popular vote and electoral count, but Republican Rutherford B. Hayes challenged results in three states, according to the House of Representatives’ institutional history. To resolve the election, Congress established the temporary and bipartisan Electoral Commission, whose 15 members voted along party lines to award contested ballots to Hayes.
Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia Center for Politics, told USA TODAY via email that Trump “would likely prevail in such a vote, given that Republicans will control at least 26 of the 50 state-level delegations, and potentially 27 depending on what happens in the IA-2 recount,” meaning the Iowa’s 2nd Congressional District.
But it’s unlikely that Trump can get the election decided in the House by contesting results in court to delay their certification, Muller explained in an interview with USA TODAY.
“I’ve never seen a federal court enjoin state certification of a statewide election, much less a presidential election. So that’s rare,” Muller said.
Fact check: No one was allowed to vote after Nov. 3
If there are contested election results in any state, it has until Dec. 8 — the “safe harbor” deadline — to resolve the issue and have its results considered conclusive. The Electoral College doesn’t meet until Dec. 14
“I think states and courts are going to be sensitive to those deadlines and really push to resolve any disputes and uncertainty ahead of certainly the 14th, but even the eighth,” Muller said. “So I dispute that, even as a longshot, that there would be any extensive delay in certification at this stage.”
Is it likely that the election will go to the House? “No, just flatly no,” Muller said, chuckling.
“Even with some faithless electors or even if the Trump campaign tries to come up with an alternative slate of electors under whatever wild scenario they do, I would expect us to see 306 or near that many electoral votes being given to Congress on Jan. 6 (in favor of Biden), and I don’t see a reason why they wouldn’t count all of them for him,” he said.
If Trump never concedes?
Experts have agreed that concession is a formality, and the Constitution states that a new president will take office at noon Jan. 20 regardless.
“I think Congress will count the votes on Jan. 6 and a new president will be sworn in Jan. 20, and the wheels of government will move in a different direction,” Muller said. “And I anticipate (Trump) will start behaving like he’s lost, even if he never concedes the election by that point in time.”
According to a report by the Transition Integrity Project, a recent effort by researchers to study scenarios that would put the integrity of the 2020 election at risk, “a candidate unwilling to concede can contest the election into January.”
However, conservative lawyer John Yoo told CNBC that while Trump has the right to mount legal challenges, “we should be clear that these are ‘Hail Mary’ passes we might think of in American football.”
Yoo said Tump doesn’t have to concede because “the thing about the American Constitution is that it doesn’t actually require the sitting president to do anything one way or the other. On January 20th, Donald Trump’s term ends and Joe Biden’s, I believe, will begin.”
Kondik told USA TODAY that “Trump’s concession or lack thereof doesn’t really matter to the outcome one way or the other.”
Neville-Shepard also notes in a 2018 Washington Post column that “electoral concessions are not in any way binding; to the contrary, they arise out of, and are a nod to, a candidate’s faith in other electoral norms.”
Our rating: Missing context
Based on our research, we rate this claim as MISSING CONTEXT. While all presidential elections have the potential to be decided in the House of Representatives under the Constitution, Vaughn’s video fails to mention key steps needed in order for the election to go to the House. Even if the election results were contested and Trump doesn’t concede, experts have agreed that it is unlikely for Trump to win the election this way.
Our fact-check sources:
- Shane Vaughn, Nov. 8 Facebook video
- USA TODAY, Nov. 5: “No presidential candidate in modern history has refused to concede, but there’s no law that requires it”
- Cornell Law School Legal Information Institute, 12th Amendment
- United States House of Representatives History, Art & Archives, Electoral College & Indecisive Elections
- Excess of Democracy, Sept. 28: Four (unlikely) ways the 2020 presidential election ends up in the House of Representatives
- Congressional Research Service, The Electoral College: A 2020 Presidential Election Timeline
- Constitutional Law Reporter, Text of Article 2, Section 1
- USA TODAY, The Electoral College Explained
- USA TODAY, Oct. 24, The Electoral College can pick a president who got fewer votes. Here’s why and how.
- USA TODAY, 2020 Election Results & Maps
- USA TODAY, Sept. 28, Biden and Trump prepare for first presidential debate, Pelosi outlines scenario in which House decides election
- CNBC, Nov. 12, What if Trump never concedes? The Constitution will end his term, conservative lawyer John Yoo says
- Washington Post, Nov. 9, Trump is wrong. Concession speeches aren’t binding at all.
- Transition Integrity Project, Aug. 3, Preventing a Disrupted Presidential Election and Transition
- Kyle Kondik, USA TODAY email interview
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