This could happen if the Supreme Court overturns enough of Biden votes, that he does not have sufficient to achieve the 270 electoral votes to win the election.
We don’t know yet if this will happen, but with the many recounts, investigations into fraud, and court challenges it is a possibility.
If neither candidate receives the required 270 electoral votes, then the Twelfth Amendment to the U.S. Constitution outlines what happens. “…if no person have such majority (of elector votes), then…the House of Representatives shall choose immediately, by ballot, the President.” But in choosing the President, the votes shall be taken by states, the representation from each state having ONE vote.” A quorum of members from two-thirds of the states is required.
WOW! One vote for each state. So how does that break down? Right now the Republicans have a majority of House members in 26 states, the Democrats have a majority of House members in 23 states and Pennsylvania is evenly split with 9 Republicans and 9 Democrats. However, the Timeline for the Presidential election as provided by the Congressional Research Service tells us that the newly elected Congressmen who will be sworn in on January 3, 2020 will be voting, if this scenario plays out, not the current Congress.
There were 6 or more seats picked up by the Republicans in the 2020 election. How does that change the balance in the House of Representatives? It will not changed much. On January 3, 2020, newly elected Congressmen will be seated. Republicans will have a majority of members in 26 states, Democrats in 21 states and three states are evenly divided: Pennsylvania with nine Republicans and nine Democrats, Minnesota is projected to have four Republicans and four Democrats, and Michigan will have seven Democrats, six Republicans and one Libertarian. So, if the Republican House members from the majority Republican states stick together and vote for President Trump, he would be elected with 26 votes (states) to the Democrats 21, three states being divided.
This kind of an election is known as a contingent election and has only happened three times in our history, in 1801 (Thomas Jefferson), 1824 (John Quincy Adams) and 1837 (Van Buren’s Vice-Presidential running mate Johnson won in a contingent election).
If the election becomes a contingent election and is thrown into the House of Representatives, and they vote according to party lines, President Trump will be elected President. Of course, this is dependent upon what happens in the contested states and in the Supreme Court.
The Electoral College 2020 Timeline
Condensed and Adapted from the Congressional Research Service of Oct 22, 2020
November 3, 2020: General Election Day.
November 4-December 14, 2020: Counting Popular Votes and Filing Certificates of Ascertainment. The states count and certify the popular vote results according to their statutory requirements. When the states have ascertained the official results, the U.S. Code requires the state governors to prepare “as soon as practicable,” Certificates of Ascertainment of the vote which list the names of electors chosen by the voters and the number of votes received in the popular election. One copy is sent to the Archivist of the United States.
December 8, 2020: The “Safe Harbor” Deadline.
The U.S. Code provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over elections and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors’ meeting, then these results are considered to be conclusive, and will apply in the counting of electoral votes. (Who knows what will happen with all the court challenges to the election process that have been filed in numerous states, including: Arizona with 11 Electoral College votes, Georgia 16, Michigan 16, Nevada 6, Pennsylvania 20, and Wisconsin 10.) (As of Nov. 12, 2020 Biden claims 279 electoral votes and Trump 217, with Arizona, Georgia and North Carolina not finalized.)
December 14, 2020: Electors Vote in Their States.
Monday after the second Wednesday in December is set as the date on which electors meet according to the U.S. Code. Electoral College delegations meet separately in their respective states and the District of Columbia at places designated by their state legislature. The electors vote by paper ballot, casting one ballot for President and one for Vice President. The electors count the results and then sign six certificates. They pair the certificates with the certificate from the governor, and send them by registered mail to the President of the U.S., two certificates to their Secretary of State, two certificates to the Archivist, and one to the U.S. District Court judge in which the electors met.
Failure to Deliver Certificates by December 23, 2020:
If the certificates from any state have not been delivered by Dec 23, 2020, the President of the Senate or in their absence the Archivist, is required to request the Secretary of State or equivalent officer in that state to send one of the copies they hold to the President of the Senate.
January 6, 2021: Joint Session of Congress to Count Electoral Votes and Declare Election Results meets on January 6, 2021. The Senate and House of Representatives assemble at 1pm in a joint session at the capitol, in the House chamber, to count the electoral votes and declare the results. Four tellers, two from each house read and make a list of the certificates from the electors. The Vice President presides as President of the Senate. If one of the tickets has received a majority of 270 or more electoral votes, the Vice President announces the results.
Joint Session Challenges to Elector Vote Returns:
While the election results are being announced, Members may object to the returns from any individual state as they are announced by the Tellers. Objections to individual state returns must be made in writing by at least one member of the Senate and the House. If the objection meets the requirements then the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. They then vote separately to accept or reject the objection. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.
January 20, 2021: Presidential Inauguration. Beginning in 1937, the Twentieth Amendment set the date for inaugurations as January 20. End of Elector Time Line
“If my people, which are called by my name, shall humble themselves and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.” - 2 Chronicles 7:14 KJV