Source: CNN
How would you feel if the House of Representatives, rather than the voters or even the Electoral College, chose the next president? Yes, the same chaotic House of Representatives that barely managed to pick a speaker in January, nearly shut down the government last month, might shut down the government next month, and flailed in the wind for more than three weeks trying to select a new speaker after jettisoning Kevin McCarthy on a whim. The same House of Representatives viewed unfavorably by more than 2 out of every 3 Americans. That’s right, that one.
There are several ways this could happen. Some of the causes could be accidental, such as a 269-269 tie in the Electoral College or the untimely passing of a presidential candidate. Others could be the product of bad faith, such as a congressional refusal to certify electors, as was attempted on January 6, 2021. But there is one cause that is very much avoidable: If the political organization No Labels, or for that matter any third party or independent, follows through on its plan to run a third-party presidential ticket in 2024, and they somehow manage to pull off an upset in even just one state.
To be clear, even though most Americans have unfavorable opinions of our two major parties, experts agree that it’s simply fantasy that No Labels or any other third party can win enough states to capture a majority in the Electoral College (270 electoral votes), and, with it, the presidency. Instead, a more likely outcome is that they attract a small but meaningful number of independent and moderate voters — splitting the anti-Trump vote and returning to the White House a would-be autocrat who faces criminal charges in four jurisdictions, including one for attempting to overturn the last election. (Trump has denied any wrongdoing in all the cases.)
But what if No Labels or another third party shatters expectations and finishes first in even one or two states (or just one of the congressional districts in Maine or Nebraska, where electors are allocated by district)? By winning even a handful of electors in a tight election, a No Labels ticket could prevent any candidate from securing a majority in the Electoral College, which chooses the president. If that happens, the Constitution requires the election results be set aside and that the House of Representatives instead choose the president.
Significantly, there is no constitutional obligation in such a case that the House select either the popular vote or the electoral vote winner — and there is good reason to fear such an undemocratic outcome. Instead, the Constitution requires that the House vote by state delegation, with each state getting one vote. Republicans will have a built-in advantage even if Democrats retake the House majority because they currently control more delegations and are almost certain to again in the next Congress.
Put differently, if No Labels shocks the political world by winning anywhere but does not get an outright majority of Electoral College votes (an all-but-certain impossibility), the only thing they could achieve is a rerun of the recent speakership drama with much higher stakes. This scenario, which is called a “contingent election,” would produce chaos exceeding anything we have ever seen.
There are essentially no fixed rules for conducting a contingent election, other than that the House must pick from the top three finishers in the Electoral College. The Constitution describes the process in just a few dozen words. There are zero federal laws governing contingent elections beyond that description. As a result, a majority of House members would have to create the procedures from scratch, with the most recent precedent occurring in 1825.
This opens the door to gamesmanship and abuse. Regardless of which party is in control of the House, congressional leaders will face overwhelming pressure to manipulate the process in hopes of influencing the outcome. As we recently saw in the House, a small handful of members could have veto power over the entire process. In this context, they might be able to obstruct a presidential vote altogether and prevent the other party from taking office.
Time would not be on our side. In January 2025, the House would have just 17 days to select a new speaker, count the electoral votes in joint session with the Senate, debate and adopt rules for a contingent election and then conduct presidential ballots until someone wins a majority of state delegations. The recent speaker vacancy lasted 22 days. Last time Congress counted electoral votes, when we already knew who the winner was, we saw objections, obstruction — and a failed insurrection. Thankfully, Congress has since updated the Electoral Count Act to address some of the most glaring weaknesses in the 19th century procedures for counting electoral votes. But if a meaningful faction seeks to challenge the results again, the process could devolve quickly. Remember, newly elected House Speaker Mike Johnson played one of the most significant roles of any member of Congress in the effort to overturn the 2020 election. Missing the 17 day deadline would leave the presidency vacant on Inauguration Day for the first time in US history — potentially inviting an intense conflict over presidential succession.
These issues are a small sample of the dangerous uncertainties surrounding a process that could quickly escalate to an outright constitutional crisis, leadership vacuum at a time of mounting international and national security threats, or even domestic upheaval and violence. For example, if one of the three eligible candidates dies before the House vote, there is no legal way to replace them (for example, with their running mate). That party is simply excluded from the election for president. Any scenario where an untimely death can categorically shift which party takes power is dangerous for democracy.
Disturbingly, No Labels seems to see a contingent election as a potential path to power while ignoring the possible disastrous results to democracy. Belying any sense of the risks involved, they recently described the contingent election process as “show[ing] that the path to the Oval Office can be more unlikely than voters often imagine.” Such an attitude is not only arrogant and self-serving but perilous.
If we have learned anything from the last presidential election and the events that followed, it is that we cannot take the stability of our democracy for granted. And if we are learning anything from the ongoing dysfunction in the House, it is that its members are often incapable of performing even the basics of governing. All the warning lights are flashing red: We cannot afford to sleepwalk into this crisis.
Everyone recognizes there are many ways that our next president could come into power. But everyone, and especially No Labels, needs to recognize that not all of them leave our democracy intact.