America decides: But what if it can’t?

The “October surprise” has long been a feature of US presidential election campaigns, but an inconclusive or disputed result next month offers the prospect — with mercurial Donald Trump still in office — of one of the most unpredictable post-election periods in US history. 

It is not only some journalists, academics and politicians who are concerned about the potential for a deadlocked election. Investors and the public at large are worried too.

One poll this month suggested that more than 70 percent of Americans fear post-election violence. In the financial community, the reason for concern is that previous disputed elections in 2000, 1876 and 1824 wereaccompanied by market volatility.

To be sure, if Trump loses big in the electoral college, the pressure on him to concede quickly, including from many Republicans, will be intense and he may yet go gracefully despite his bluster. But problems could ensue if a Biden victory is much narrower, or the ballot inconclusive.

While a deadlocked election may appear far-fetched in the 21st century UN, the 2000 contest between Al Gore and George Bush shows how this could unfold.  That election, which ultimately centered on just 537 votes in Florida, required the Supreme Court to intervene, plus the acquiescence of Gore to its decision, with which he strongly disagreed.

That episode, which had clear potential to become a constitutional crisis, showed legal loopholes at the heart of presidential elections; the orderly transfer of power from one president to another is heavily reliant on democratic norms as much as laws, creating the potential for disorder if exploited.

The seeds for Trump, no great respecter of precedent and norms, to dispute the vote are already in place. He has sought to cast doubt on the legitimacy of what he calls “fraudulent” mail-in ballots, of which there will be a record number this year because of the pandemic.

In the context of a close electoral college contest, there could be mass litigation. The outcome may need to be decided in Congress, which ultimately has responsibility for tallying electoral college certificates sent by states.  

But with the results in several swing states potentially very close indeed, competing electoral certificates could be submitted if one major party controls the state governor’s mansion and the other party one or more houses of the state legislature.  The precedent for this comes from 1876, when three states submitted competing electoral certificates to Congress.

It is not only some journalists, academics and politicians who are concerned about the potential for a deadlocked election. Investors and the public at large are worried too.

Andrew Hammond

As it is today, Congress was divided then between a Republican-controlled Senate and Democrat-controlled House of Representatives.  Ultimately, Congress was unable to resolve the stalemate until Democratic presidential nominee Samuel Tilden conceded.   

In the event of an inconclusive electoral college vote, authority for selecting a president rests with the House, and the Senate for the vice-president.  The newly elected members of the House meet state by state to cast a single vote to select the president.

The single House member from Rhode Island thus carries the same weight as the 50-plus members from California.  If the election reaches this stage, a candidate must receive at least 26 votes to win.  

In 1824, when none of the four main candidates (Henry Clay, Andrew Jackson, John Quincy Adams and William Crawford) won the necessary majority of the electoral college votes to win the presidency outright, the House selected Quincy Adams as president, despite the fact that Jackson had won more electoral college votes.

This experience has not been repeated, although the presence of three relatively strong electoral candidates in 1968 almost divided the field so that no one secured an absolute majority.  Republican candidate Richard Nixon won 301 electoral college votes, only 31 more than were necessary to win the election.  His main challengers, the Democrat Hubert Humphrey and Independent George Wallace, won 191 and 46 electoral college votes respectively. 

There was a similar outcome in 1948, when four main candidates competed for the presidency. That year, Democratic President Harry Truman secured 303 electoral college votes.

If all else fails, and no candidate can secure the assent of the House by January 20, the terms of the 1947 Presidential Succession Act mean that the House Speaker, Democrat Nancy Pelosi, would become acting president if she resigns from her legislative seat.  Yet some have suggested that if Trump continues to insist that he has been re-elected he could even seek to stage his own inauguration ceremony, leaving both him and Pelosi both claiming to be commander-in-chief.

While that scenario appears implausible, Trump’s presidency has highlighted how low probability-high impact political risks cannot be entirely dismissed. This is why November, December and indeed January “surprises” cannot be ruled out if a tight vote results in a disputed or inconclusive electoral college outcome.  

• Andrew Hammond is an Associate at LSE IDEAS at the London School of Economics