CNN Images

Eli Levsky

The 2024 Presidential election is mere days away, and pundits across the spectrum expect a highly contested and contentious result. With razor-thin polls this cycle, anything is possible in this election, including the possibility that congressional control is uncertain. Politico recently published an article on how former President Donald Trump can seize power while still losing the election by sowing distrust among the public and forcing the House to throw out swing state electoral votes and confirm a contested election for Trump (and a Democratic-controlled Senate to pick Tim Walz as his Vice President).

While the Politico article alludes to it, there is another way the election could be thrown into even more disarray at the Congressional stage, but it does not delve into it due to the legal ambiguities and the unprecedented character of the scenario. The scenario would escalate the constitutional crisis, further snowballing the chaos of the election, and could lead to Antony Blinken becoming the next President of the United States. This all raises the question, what if it’s not just the presidential election that is contested? What if congressional control is also indecisive?

Let’s run through a hypothetical.

A House Divided

Under the Constitution, the House of Representatives, alongside the Senate, certifies the votes of the Electoral College. While this has historically been a routine formality for certifying the election, this session was interrupted during the January 6 insurrection in 2021, confirming that the President-elect is not chosen once the Electoral College votes but when Congress certifies the ballots. To hold this joint session, both chambers must have a quorum, meaning its members need to be sworn into office. In the House, representatives are sworn in by the Speaker of the House on January 3, and this is where things can start to go wrong.

There is a distinct possibility that there will be no speaker on January 3, let alone for the joint session on January 6. After all, in 2023, it took Kevin McCarthy four days and fifteen15 ballots to be elected Speaker, caused by a small faction of twenty GOP members-elect refusing to vote for McCarthy. While that may seem like a small group, it is enough to hold up the House. In the scenario in which Republicans maintain control of the House, it is again likely that this group will try to exert more demands from current Speaker Mike Johnson before voting for him to regain the gavel.

Unlike in the succeeding situation of the October 2023 Speaker elections, when it took twenty-two days for Johnson to be elected, including eight days of voting, there is no option of appointing a Speaker pro tempore since that role is determined by the incoming Speaker of the House. The Supreme Court could rule that Johnson’s secret list from the preceding Congressional session would be the one to apply in this situation, but that would require an emergency decision. If a Republican-controlled House cannot elect a new Speaker within three days, it will delay the election certification process. There is also the possibility that the House is evenly split between Republicans and Democrats if even one seat is left vacant due to a death or a contested result and drawn-out litigation, making it impossible for either party to have a majority and elect a Speaker.

A Split Senate and Cabinet Control

Suppose the House cannot choose a Speaker and certify the Presidential Election by Inauguration Day on January 20. In that case, the 20th Amendment to the Constitution outlines that the Vice President-elect becomes acting President; however, in this scenario, the election certification can’t happen since the House has no quorum and, consequently, no Vice President-elect. Therefore, the next in line would be the Speaker of the House, but once again, there is no Speaker yet, so it would then go to the President pro tempore of the Senate, which is currently Patty Murray, a Democrat. The Founding Fathers intended that the Senate would serve as an institution that could guarantee government continuity no matter what happens in the House, which is why Senators are divided into three classes. Murray is in Class III, which means she is not up for election this year and will still be a Senator in January. Murray will serve as President pro tempore for the first part of the opening session regardless of the partisan composition of the Senate because her term doesn’t end until a new President pro tempore is elected. Therefore, the only way for the office to be vacant this year is if she resigns or dies.

In the scenario that the line of succession reaches Murray, she has to resign from the Senate to become acting President since the Constitution prohibits members of Congress from holding other federal offices – a risky course of action in a presumably closely divided chamber. Since Murray would decline the role, the next person in the presidential line of succession is Secretary of State Antony Blinken. While it is customary for cabinet members to resign before inauguration day to make way for the incoming administration, President Biden could ask Blinken not to resign to ensure some semblance of governmental continuity. In the situation where all eleven cabinet members who are natural-born citizens — a prerequisite to be president — resigned, there is no legal clarification on who would be next in the line of succession and if acting secretaries are included in the list.

A Republican Senate

What if the Republicans win the Senate straight out and have a majority? Then, they could confirm a President pro tempore from their party, and if the GOP has a large enough majority (just two seats), that person can afford to resign from the Senate, and the GOP would still retain control of the chamber. This is where it gets even scarier: as acting President, they would be able to appoint new cabinet members and have them confirmed by a GOP-controlled Senate; this might be legally ambiguous, but a conservative Supreme Court might rule in the GOP’s favor.

If the election results are so ambiguous and the guardrails of democracy have deteriorated so far, there is only one obvious pick for the next Secretary of State: Donald Trump. Trump’s goal is obviously to become President, not a secretary, but the Senate President pro tempore/acting U.S. President could appoint Trump and immediately resign, making Trump next in line to be acting President. Even a Republican-controlled Senate might not vote in favor of this since some members oppose Trump and would not want to risk undermining democracy, but it is still an open possibility. Trump would then likely have a friendly judge administer him the presidential oath of office — there is no requirement besides being a judge to administer the oath — granting a veneer of legitimacy that he has the mandate to rule and that he is the next President and all this without actually resolving the stalemate in the House and certifying the electoral college. In other words, Trump could seize power without even winning the election.

The Perfect Concurrence

While this might seem like speculation and a whirlwind of perfectly aligned events, it’s essential to remember the lesson from the unprecedented last eight years of presidential politics that anything can and will happen, even if it is unlikely. Trump idolizes other autocrats, like Vladimir, Hungary’s Victor Orban, and former Brazilian President Jair Bolsonaro, who have seized power in other dubious fashions, so it would not be entirely out of character for Trump to emulate them if there were the perfect confluence of events.

A Congress unwilling to form itself and confirm the election would create more uncertainty in succession policy than any other scenario — besides a post-9/11 terrorist attack — since the Presidential Succession Act of 1947. A Blinken administration might seem like a good compromise while resolving the constitutional crisis, but it could actually escalate the situation. If the election is so up in the air that the next President has to come from within the cabinet, it will erode public trust in the institution of the presidency and the election since Blinken became President without ever being elected to a role, just like Gerald Ford. Democrats might see it as a pyrrhic victory, but Republicans would view it as an unjust and undemocratic seizure of power by the other side. If America ends up in the scenario where Trump confirms himself via cabinet appointment regardless of the electoral outcome, it would be viewed the same way by Democrats, as a circumvention of the will of the people and akin to a coup, collapsing public trust in democratic institutions.

It might be nice to hope this upcoming election will be easily determined within a few days of November 5, but that is wishful thinking. Any chaos during this election and transition of power opens the U.S. up to a constitutional crisis and deteriorates our image on the global stage. It is crucial, then, to understand what can happen if our government is thrown into disarray, eroding our constitutional principles and backsliding further from democracy.