It helps to think of the architects of our nascent Constitution as the Eagle Scouts of their day. For every possible scenario that could occur during a national election, they either came up with a Constitutional back-up plan or delegated contingency power to the states.
With Election Day just a few days away, here are four electoral snafus that would trigger fascinating, if unlikely, emergency protocols.
1. A candidate wins the Electoral College but loses the popular vote by a slim margin.
Under the Twelfth Amendment of the Constitution, whichever candidate wins the majority of votes in the Electoral College—currently, that’s 270 of 538—wins the election. Period. No ifs, ands, or buts. From a legal standpoint, there’s not a lot of wiggle room there. But when it comes to questions of public perception of a fair and legitimate election—and, more importantly, how slim the margin of victory was—it’s a much stickier issue.
With national polls tightening in the weeks before Election Day and Trump supporters being primed to expect that this election will be “rigged” against their candidate, pundits have summoned the ghosts of elections past. Namely, the 2000 election when Republican George W. Bush won the Electoral College, but lost the popular vote to his Democratic rival, Al Gore. If a version of that scenario occurs again this year, the political parties would likely be switched, with the Republican, Donald Trump, winning the popular vote over the Democrat, Hillary Clinton, who has a clearer path to victory through the Electoral College.
According to several election experts, the most likely scenario in such a case would be a flurry of post-election recounts, qualification challenges, lawsuits and a pair of massive influence campaigns to flip electors (see No. 3, below). But that’s where it gets a little tricky.
Each state has a blizzard of different laws governing how, exactly, this post-election battle would play out. In most states, a candidate, voter, group of voters or a political party can petition for a recount. In other states, specific criteria must be met to trigger one. In Colorado, for example, recounts are only conducted if the difference between the candidates’ vote tallies comes down to less than or equal to 0.5% of the total votes cast for that office. In Alaska, South Dakota or Texas, recounts only occur when the final vote tally is a perfect tie.
Regardless of the state, the recount process is under a strict, time limit set by federal law. That law says that any controversy over electors must to be settled six days before the Electoral College is set to meet, usually in mid-December. Part of the reason that the U.S. Supreme Court weighed into the recount controversy in Florida in 2000 was because the justices determined that, by using different recount methods, Florida was violating the Equal Protection Clause and—crucially!—that no alternative method could be established before that six-day cut-off.
2. There’s a tie in the Electoral College.
If Clinton and Trump each get 269 votes in the Electoral College, the Twelfth Amendment specifies that the election “defaults” to Congress. The House decides the president and the Senate the vice president. Different rules apply to each chamber in a so-called contingent election.
In the House, each state delegation casts one vote for president from among the three candidates who received the most electoral votes. States that have only one representative — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming — cast one vote, the same as California, which has 53, or New York, which has 27. Whichever candidates get the simple majority of votes, 26 or more, becomes the next president.
In the Senate, each senator casts an individual vote for vice president and, like the House, simple majority rules. Whichever candidate gets 51 or more of the votes becomes the next vice president.
So-called faithless electors are relatively rare. In the 240 years of American presidential elections, there have only been 81 instances in which an elector, acting on personal initiative, has broken his or her party’s pledge and in no case have they succeeded in affecting the outcome of an election. (There have been 157 instances of faithless electors total, but 71 of them changed their vote because their pledged candidate passed away and three abstained.)
But it’s possible a faithless elector—or, more likely, a handful of them—could change the outcome of the election this time. If that happens, it would trigger a deluge of lawsuits, including, probably, a few against the individual elector. In 29 states, faithless electors can be held personally accountable through fines and penalties for breaking their pledge to their party, according to the non-profit, FairVote.
It would also likely trigger a very-rarely-used Congressional check. On January 6, 2017, the newly elected Congress will meet to ensure that the electoral vote was “regularly given.” In the past, this meeting has almost always been ceremonial. Each state announces its electoral votes, everyone claps, and that’s it. But technically, if one House member and one senator objects, then the new members must retreat to their own chambers and vote on what to do about the objection. If the House and Senate agree, their decision is final. That happened once, in 1968, when both chambers agreed to respect a faithless elector from North Carolina’s decision to switch his vote to George Wallace, even though he was pledged to Richard Nixon. (His vote didn’t have an effect on the outcome of the election.)
If the House or the Senate cannot agree on what to do about an objection, then the dispute goes to the “executive of the state,” meaning the state’s Secretary of State, according to federal election law. He or she would make the final call.
4. The Supreme Court ties on an electoral dispute
In the very likely case that any of the scenarios above were challenged in state or federal court and the cases worked their way up in the appeals process to the Supreme Court, it would fan controversy over whether Justice Ruth Bader Ginsburg, who betrayed a distaste for Trump in comments to the press earlier this year, would recuse herself.
Due to the death of Justice Antonin Scalia, the court currently has eight members, raising the possibility of a tie. But the architects of the Constitution foresaw that possibility, so in the event that occurred, the lower court’s ruling would stand.
The bottom line: No matter what unlikely thing happens, it will eventually get resolved.