US decides ... but what if it can’t?

The “October surprise” has long been a feature of US presidential election campaigns, but an inconclusive or disputed result next month offers the prospect — with mercurial Donald Trump still in office — of one of the most unpredictable post-election periods in US history.

While a deadlocked election may appear far-fetched in the 21st century UN, the 2000 contest between Al Gore and George Bush shows how this could unfold. That election, which ultimately centered on just 537 votes in Florida, required the Supreme Court to intervene, plus the acquiescence of Gore to its decision, with which he strongly disagreed. Congress ultimately has responsibility for tallying electoral college certificates sent by states. But with the results in several swing states potentially very close indeed, competing electoral certificates could be submitted if one major party controls the state governor’s mansion and the other party the state legislature. The precedent for this comes from 1876, when three states submitted competing electoral certificates. Congress was unable to resolve the stalemate until Democratic candidate Samuel Tilden conceded.

In the event of an inconclusive electoral college vote, authority for selecting a president rests with the House, and the Senate for the vice president. The newly elected members of the House meet state by state to cast a single vote to select the president.

In 1824, when none of the four main candidates (Henry Clay, Andrew Jackson, John Quincy Adams and William Crawford) won the necessary majority of the electoral college votes to win the presidency outright, the House selected Quincy Adams as president, despite the fact that Jackson had won more electoral college votes.

This experience has not been repeated, although the presence of three relatively strong electoral candidates in 1968 almost divided the field so that no one secured an absolute majority. Republican candidate Richard Nixon won 301 electoral college votes, only 31 more than were necessary to win the election. His main challengers, the Democrat Hubert Humphrey and Independent George Wallace, won 191 and 46 electoral college votes respectively.

There was a similar outcome in 1948, when four main candidates competed for the presidency. That year, Democratic President Harry Truman secured 303 electoral college votes.

If all else fails, and no candidate can secure the assent of the House by January 20, the terms of the 1947 Presidential Succession Act mean that the House Speaker, Democrat Nancy Pelosi, would become acting president if she resigns from her legislative seat. Yet some have suggested that if Trump continues to insist that he has been reelected he could even seek to stage his own inauguration ceremony, leaving both him and Pelosi both claiming to be commander-in-chief.

While that scenario appears implausible, Trump’s presidency has highlighted how low probability-high impact political risks cannot be entirely dismissed. This is why November, December and indeed January “surprises” cannot be ruled out if a tight vote results in a disputed or inconclusive electoral college outcome.