- - Friday, August 28, 2020

House Speaker Nancy Pelosi, 2016 Democratic presidential candidate Hillary Clinton and the mob, each in their own way, last week increased the risk that we will face a fairly grave constitutional moment.  

Mrs. Pelosi, in an unscripted moment, with her usual charm, identified the president and his allies in Congress (one can only assume she meant all the congressional Republicans) as domestic enemies of the United States. For her part, Mrs. Clinton publicly advised Democratic presidential candidate Joseph R. Biden not to concede the election under any circumstances. The mob attacked a U.S. senator in the street.

In ordinary times, these comments and actions would be remarkable enough and worthy enough of severe approbation. But in a presidential election cycle in which there is a very real possibility of a contested result, identifying the opposition as domestic enemies, counseling no concessions of any kind and assaulting an elected official merely because he is an elected official amount to material endangerment of the republic.

How likely is a contested election? In 1876, the election was close enough that it hinged on the votes (and the voting certification process) in three states: South Carolina, Louisiana and Florida. This year, vote counts may take weeks because of a surge in voting by mail and early in-person voting. A shortfall of poll workers and an increase in claims of voter fraud also will complicate matters, as will likely violence in select cities on Election Day.

The timeline is a problem as well. By Dec. 14, just 41 days after the Nov. 3 election, states are required to convene their presidential electors and forward their certified results to the House. Think about that for a moment. In less than six weeks, states will have to count all the votes, settle the inevitable legal disputes over vote counting and forward the results to the House.



That is going to be a challenge in states such as Florida, Michigan and Pennsylvania, where the election results are likely to be very close and very material to the question of who will be president on Jan. 20, 2021.

When the House convenes on or around Jan. 5, 2021, its first order of business will be to pass rules for the organization of the House, as well as vote for its leaders. The second order of business will be to officially receive and approve the certification and votes of electors from the states. That’s where the wheels can fall off the cart.

If the House is given multiple certifications for a state, it can decide which it chooses to accept or it can determine on its own to disallow or ignore a certification for good reasons or no reason at all. If the House is unable to determine and certify a winner, it must vote for a president. In such an event, each state delegation has one vote. Currently, the House is split almost down the middle — 26 delegations are majority Republican, 23 majority Democratic and Pennsylvania is evenly split. That arrangement might change in the wake of this year’s elections, or it may not.

In 1876, governors and legislatures in the three states in question sent competing certifications to the House for Democratic nominee Sam Tilden and Republican nominee Rutherford B. Hayes. Unable to determine which to accept, the House was seized by paralysis, and for a time it looked as if the the U.S. would head toward warfare for the second time in 15 years. What saved the day was a deal under which Reconstruction would be terminated in exchange for seating Hayes as president.

That’s the problem with Mrs. Pelosi’s and Mrs. Clinton’s comments and the surliness of the mob. If the election is marked by uncertainty, delay and competing claims of legitimacy, it is imperative that leaders on both sides maintain their composure and optionality. Identifying a rival party as a domestic enemy, or foreclosing any possible remedy to a crisis, is not wise.

We all hope that the election is safe and straightforward, and the results conclusive. But if it isn’t, and they aren’t, we all need to be proceed as if our republic is at risk. Because it will be.

• Michael McKenna, a columnist for The Washington Times, is the president of MWR Strategies. He was most recently a deputy assistant to the president and deputy director of the Office of Legislative Affairs at the White House.

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