Not just the presidency

As you’ve probably worked out by now, Americans go to the polls in a little over three weeks time, in a presidential election that looks increasingly likely to deliver victory to Democrat challenger Joe Biden. But it’s not just the presidency: a range of elections will take place for senators, representatives, governors, state legislators, local officials and a variety of other positions.

Apart from the presidential race, the most interest is focused on the Senate, a third of which faces election every two years. We’ll come to that next week; today I want to look at the House of Representatives.

The Democrats won control of the House in the 2018 midterm election, winning 235 seats to the Republicans’ 200. There have been minor changes since then, which cancel out: the Republicans won one seat in a by-election, a Democrat member switched sides, and a redistribution in North Carolina delivered two seats to the Democrats. So the Republicans need to pick up 18 seats to win back control.

The chance of them doing so is negligible. You can get four to one against it at Sportsbet, and FiveThirtyEight’s forecast model gives them only a six per cent chance. But there’s more than overall control at stake: the House election could also end up determining the presidency.

As we all know, the result of the presidential election depends on winning a majority in the electoral college. The twelfth amendment provides that the president shall be “The person having the greatest number of votes … if such number be a majority of the whole number of Electors appointed.” So while 270 is the target number, it’s possible to win with fewer votes in the electoral college if some states fail to appoint electors – possibly due to the sort of shenanigans that people are especially worried about this year.

Assuming, however, that that’s not the problem, the electoral college may fail to elect a president because no-one can get to 270 votes: either because two candidates are tied on 269 each, or because some electors’ votes go to someone else, or go nowhere (perhaps because competing slates of electors have been returned from disputed states).

If there is a dispute over which electoral votes are valid, Congress is supposed to sort it out. But if there is no majority in the electoral college, the choice of a president defaults to the House of Representatives, which must choose among the top three vote-getters in the electoral college.

Not, however, by an ordinary vote in the House. Instead, the House votes by states, with each state counting for one vote, as determined by a majority vote of that state’s delegation. And “a majority of all the states shall be necessary to a choice.”

So to choose a president in the House, a party needs control of 26 state delegations. In the current House, the Republicans have that – just. The Democrats control 22, and two, Michigan and Pennsylvania, are tied. Despite their overall minority, the Republicans would win a vote by states, because they do better in small states while too many Democrat votes come from a few large states.

For the Democrats to flip that control, they would have to win an extra seat in each of Michigan and Pennsylvania, and then overturn Republican majorities in two other states. But they could frustrate Republican control by depriving them of their majority in just one additional state. With only 25 states, the Republicans would be unable to insist on their choice.

If neither the electoral college nor the House of Representatives manages to choose a president by 20 January, the vice-president is supposed to take over as acting president. But if there’s no majority in the electoral college for a president, there’s unlikely to be one for a vice-president either. And in that case, the choice of a vice-president devolves on the Senate.

But that’s unlikely to help either, because although a majority of the Senate is all that’s needed, there’s a quorum requirement of “two-thirds of the whole number of Senators.” Since there’s no plausible scenario in which the major parties won’t each have at least a third of the Senate, either could frustrate the other’s choice of a vice-president by refusing to turn up.

And if neither a president nor a vice-president has been chosen, the constitution leaves it up to Congress to legislate for what happens next. It has done so, providing for the Speaker to be next in line; the constitutionality of this has never been tested, but as it stands it provides a potential if improbable pathway for Nancy Pelosi to wind up as acting president.

So when Pelosi urges Democrats to focus on expanding their House majority, she may have a personal as well as a political interest at stake. Although they did particularly well in 2018 and therefore will have a number of marginal seats at risk, it’s certainly possible that the Democrats will be able to find a seat or two somewhere that could overturn Republican control of one of their state delegations.

Looking down FiveThirtyEight’s list of doubtful House seats, there are a few good prospects. Montana’s single district, which requires a 2.4% swing, would do it. So would Florida’s 15th district (3.0%), or Alaska’s single district (3.3%), or the 8th and 11th districts in North Carolina (I can’t cite margins there because of the redistribution, but FiveThirtyEight says they’re a 26% and a 23% chance).

Most probably none of this will matter in the end, and one candidate (probably Biden) will walk away with a comfortable majority in the electoral college. But just in case, there’s a few congressional districts there that it’d be worth keeping an eye on.