The excruciatingly close US presidential election hung in the balance on November 4 (Wednesday), with Democrat Joe Biden leading in two critical Midwestern states that could tip the contest in his favour even as President Donald Trump falsely claimed victory and made unsubstantiated allegations of electoral fraud.

Despite incomplete results from several battleground states that could determine the outcome of the US presidential race, Trump proclaimed victory over Biden. 

In the United States, the winner of a presidential election is determined not by a national vote but through a system called the Electoral College, which allots “electoral votes” to all 50 states and the District of Columbia based on their population. Complicating things further, a web of laws and constitutional provisions kick in to resolve particularly close elections.

What if a candidate doesn`t get 270 votes? One flaw of the electoral college system is that it could produce a 269-269 tie. If that occurs, a newly elected House of Representatives would decide the fate of the presidency on January 6, with each state`s votes determined by a delegation, as required by the 12th Amendment of the US Constitution.

Electoral College: The US president is not elected by a majority of the popular vote. Under the Constitution, the candidate who wins the majority of 538 electors, known as the Electoral College, becomes the next president. In 2016, Trump lost the national popular vote to Democrat Hillary Clinton but secured 304 electoral votes to her 227.

The candidate who wins each state’s popular vote typically earns that state’s electors. This year, the electors meet on Dec. 14 to cast votes. Both chambers of Congress will meet on January 6 to count the votes and name the winner. Normally, governors certify the results in their respective states and share the information with Congress.

But some academics have outlined a scenario in which the governor and the legislature in a closely contested state submit two different election results. Battleground states of Pennsylvania, Michigan, Wisconsin and North Carolina all have Democratic governors and Republican-controlled legislatures.

According to legal experts, it is unclear in this scenario whether Congress should accept the governor’s electoral slate or not count the state’s electoral votes at all. While most experts view the scenario as unlikely, there is historical precedent. The Republican-controlled Florida legislature considered submitting its own electors in 2000 before the Supreme Court ended the contest between Bush and Gore. In 1876, three states appointed “duelling electors,” prompting Congress to pass the Electoral Count Act (ECA) in 1887.

Under the act, each chamber of Congress would separately decide which slate of “duelling electors” to accept. As of now, Republicans hold the Senate while Democrats control the House of Representatives, but the electoral count is conducted by the new Congress, which will be sworn in on Jan. 3.

If the two chambers disagree, it’s not entirely clear what would happen. The act says that the electors approved by each state’s “executive” should prevail. Many scholars interpret that as a state’s governor, but others reject that argument. The law has never been tested or interpreted by the courts.

Ned Foley, a law professor at Ohio State University, called the ECA’s wording “virtually impenetrable” in a 2019 paper exploring the possibility of an Electoral College dispute.

Another unlikely possibility is that Trump’s Vice President Mike Pence, in his role as Senate president, could try to throw out a state’s disputed electoral votes entirely if the two chambers cannot agree, according to Foley’s analysis.

In that case, the Electoral College Act does not make clear whether a candidate would still need 270 votes, a majority of the total, or could prevail with a majority of the remaining electoral votes – for example, 260 of the 518 votes that would be left if Pennsylvania’s electors were invalidated.

“It is fair to say that none of these laws has been stress-tested before,” Benjamin Ginsberg, a lawyer who represented the Bush campaign during the 2000 dispute, told reporters in a conference call on Oct. 20. The parties could ask the Supreme Court to resolve any congressional stalemate, but it’s not certain the court would be willing to adjudicate how Congress should count electoral votes.

‘CONTINGENT ELECTION’: A determination that neither candidate has secured a majority of electoral votes would trigger a “contingent election” under the 12th Amendment of the Constitution. That means the House of Representatives chooses the next president, while the Senate selects the vice president.

Each state delegation in the House gets a single vote. As of now, Republicans control 26 of the 50 state delegations, while Democrats have 22; one is split evenly and another has seven Democrats, six Republicans and a Libertarian. A contingent election also takes place in the event of a 269-269 tie after the election; there are several plausible paths to a deadlock in 2020.

Any election dispute in Congress would play out ahead of a strict deadline – January 20, when the Constitution mandates that the term of the current president ends. Under the Presidential Succession Act, if Congress still has not declared a presidential or vice-presidential winner by then, the Speaker of the House would serve as acting president. Nancy Pelosi, a Democrat from California, is the current speaker

How does the Electoral College work? There are 538 electoral votes, meaning 270 are needed to win the election. In 2016, President Donald Trump lost the national popular vote to Hillary Clinton but secured 304 electoral votes to her 227. Technically, Americans cast votes for electors, not the candidates themselves. Electors are typically party loyalists who pledge to support the candidate who gets the most votes in their state. Each elector represents one vote in the Electoral College.

The Electoral College was a compromise between the nation`s founders, who fiercely debated whether the president should be picked by Congress or through a popular vote. All but two states use a winner-take-all approach: The candidate that wins the most votes in that state gets all of its electoral votes. Maine and Nebraska use a more complex district-based allocation system that could result in their combined nine electoral votes being split between Trump and Biden.

What if officials in a particular state can`t agree on who won? Typically, governors certify the results in their respective states and share the information with Congress. But it is possible for “duelling slates of electors,” in which the governor and legislature in a closely contested state could submit two different election results.

The risk of this happening is heightened in states where the legislature is controlled by a different party than the governor. Several battleground states, including Michigan, Pennsylvania and Wisconsin, have Democratic governors and Republican-controlled legislatures.
According to legal experts, it is unclear in this scenario whether Congress should accept the governor`s electoral slate or not count the state`s electoral votes at all.

with inputs from Reuters





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