The 2020 election could have gone either way - or not.
A reader writes that I have it all wrong - the 2020 election could have been thrown to Congress, in which case, Trump would have won. On the other hand, I posited that it was a done deal - Biden would be President - no matter what machinations Trump tried. Who's right? Who's wrong? We both are. It all depends on the fact scenario involved - and illustrates how arcane our Electoral College system is.
Our reader is right that in the event of a so-called "Contingent Election" the House decides who is President and the Senate decides who is Vice President. The Senate selects the Vice President based on a simple majority, while the House selects based on a State-by-State basis, and since Republicans have a majority of Representatives in more States (despite being in the minority overall) it is likely they would have selected Trump as President. In the Senate, they likely would have made Pence VP*. But the reader is right - in the event of a "Contingent Election" Trump would have likely prevailed.
In the United States, a contingent election is the procedure used to elect the president or vice president in the event that no candidate for one or both of these offices wins an absolute majority of votes in the Electoral College. A presidential contingent election is decided by a special vote of the United States House of Representatives, while a vice-presidential contingent election is decided by a vote of the United States Senate. During a contingent election in the House, each state's delegation casts one en bloc vote to determine the president, rather than a vote from each representative. Senators, on the other hand, cast votes individually for vice president.
But... we didn't have a Contingent Election. Such elections occur when there is a tie in the Electoral College (which didn't happen) or there are two slates of electors presented, or it is otherwise impossible to determine who won in the Electoral College. The GOP tried to present alternative slates of electors, but that never went anywhere. And they tried to throw a wrench into the Electoral College vote by objecting to several States' certification. And this latter part is what I was talking about.
If at least one Senator and one Representative objects to a State's slate of Electors, there is an entirely different process that could lead to a Contingent Election:
Once a House member and Senator submit an objection, the two chambers of Congress separate to debate for two hours and to vote on whether to continue counting the votes in light of the objection. Both chambers must vote by a simple majority to concur with the objection for it to stand, otherwise the objection fails.If both chambers of Congress affirm the objection and the objection results in no one candidate receiving the necessary 270-vote Electoral College majority, the 12th Amendment dictates a congressional process for selecting a president and vice president. The House of Representatives votes to elect the new president. As a bloc, members of the House cast one vote per state, choosing between the three candidates who received the most Electoral College votes. The Senate votes to elect the Vice President, casting one vote per senator.
That being said, we stayed up until 2:00 in the morning to watch this spectacle carried out. What was amazing to watch was the Democratic process being carried through, even after a mob stormed the Capitol and tried to murder legislators. The Constitution prevailed.