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Donald J. Trump could join the ranks of Thomas Jefferson and John Quincy Adams on January 6th, 2021. The United States Constitution in Article Two, Section 1, Clause 3, later modified by the 12th Amendment in 1804, calls for a process known as a “contested election”. This procedure addresses the problem raised when a presidential or vice-presidential candidate has not obtained enough electoral votes in an election. At that point, in the case of a contested presidential election, it calls for the House of Representatives to hold a special election to cast one vote per state for one of the candidates, thereby electing the nation’s chief executive.
Why might this obscure constitutional mechanism be relevant now? Unbeknown to some (or many), the 2020 presidential election is, in fact, being disputed. Contested presidential elections in the United States are not new. They go back as far as 1796 and have occurred, in total, on six previous occasions (1796, 1800, 1824, 1860, 1876 and 2000). Additionally, there have been elections, that while not technically disputed, certainly were tainted with questionable integrity issues such as with Grover Cleveland and Benjamin Harrison in 1888, and in 1960, the election of Richard Nixon versus John F. Kennedy.
In other words, the matter of a contested election is not a novelty in American politics. It must be emphasized, however, that not all contested electoral processes have qualified for and undergone a contested election.
This unique and rarely used constitutional instrument for resolving the problem of electoral vote insufficiency, has been employed exclusively on two occasions in the presidential realm and once in a vice-presidential electoral stalemate (1837). The election of 1800 between Thomas Jefferson and Aaron Burr, presented a situation where both candidates received an equal number of electoral votes. This forced a contested election the following year in the House of Representatives.
On February 17th, 1801, Jefferson was proclaimed the winner after 36 ballot attempts. The 1825 contested election, ensuing from a lack of a majority vote for any presidential candidate in the electoral campaign of 1824, handed the presidency to John Quincy Adams. This happened, surprisingly enough, despite Andrew Jackson having won a plurality of both the popular and electoral votes in that 1824 election.
To safeguard American democracy, the Constitution grants ultimate authority to the state legislatures in choosing the electors who will emit the corresponding votes on behalf of that state. The 2020 presidential election quickly generated validity challenges given the overwhelming irregularities that transpired. The presumed fraud, to be clear, in and of itself does not trigger a contested election.
However, once Georgia, Pennsylvania, Nevada, Arizona, Michigan, Wisconsin, and New Mexico emitted two separate groups of electors on December 14th, one for President Trump, validated by the state legislatures, and the other certified by the governors for former vice-president Biden, a clear signal has been sent that a contested election has a high possibility of taking place. It would mark the third time in America’s history that it happen.
Why did these seven states issue two groups of electors? As a result of the sworn testimony of witnesses and the formidable evidence presented before the state legislatures addressing the bombastic anomalies that took place in the 2020 elections, the state legislators exercised their constitutional duties and selected electors. The seven states mentioned will have conflicting electors on January 6th, the day Congress meets to count the electoral votes, thereby expanding the feasibility that a contested election could be held.
Vice President Mike Pence, as President of the Senate, will preside this joint session of Congress in the House. Given the fact that he is bestowed with the authority to raise the issue of the inherent conflicts presented by dual electors for those seven states, and the part that they will play in the electoral vote tally, seconded objections from other elected officials may trigger the historic realization of a contested election.
It is most obvious that we are witnessing history unfold and an enormous tests of the fortitude of American democracy and of the value of constitutional instruments that the Founding Fathers elaborated to resolve problems of inconsistencies, with high standards of election integrity, and the lack of the required electoral votes to be elected president.
If one were to limit one’s source of information to the establishment mainstream media, one might conclude that Joe Biden won on November 3rd. After all he did give a victory speech in the wee hours of that very election night, the press called it for him, and proceeded thereafter to address Biden as the “president-elect”. That scenario, however, goes against the established norms for settling disputed elections. It conspires against democracy.
January 6th is the Day of the Epiphany, a Christian feast day celebrating the revelation of God, through Jesus Christ to the Gentiles. It is also known as Three Kings’ Day. In many Christian nations, particularly in Latin America and Europe, it is a tradition to exchange gifts as a symbol on this day. The word epiphany bears out the notion of an illuminating consummation. Perhaps America and its republic will have a parallel experience on that day.
Julio M Shiling, political scientist, writer, director of Patria de Martí and The Cuban American Voice, lecturer and media commentator. A native of Cuba, he currently lives in the United States. Twitter: @JulioMShiling // Julio es politólogo, escritor, director de Patria de Martí y The Cuban American Voice. Conferenciante y comentarista en los medios. Natural de Cuba, vive actualmente en EE UU.