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This article makes a serious legal error. It speculates that by stalling through repeated objections during Congress's session on January 6, the objectors could throw the presidential election to the House in what's called a "contingent election." That is absolutely incorrect. https://twitter.com/NewYorker/status/1346170771438264323
The Twelfth Amendment provides for a contingent election when no candidate wins a majority of electoral votes. This happened in 1824, when four candidates split the votes. In a contingent election in the House, each state *delegation* gets one vote--not each House member.
And although Democrats hold a majority of *seats* in the House, Republicans control a majority of *state delegations*. (Why? Because Democrats ran up the score for seats in states like California, whereas Republicans control Wyoming's state delegation and its solitary seat.)
So, the article suggests, "[t]hat could well result in Trump's reëlection." (Umlaut in the original. Love @NewYorker , truly.) If there were a contingent election in the House under the Twelfth Amendment, that might happen. BUT NOT BY STALLING!
Stalling by endless objections, like some Republicans plan to do, *will not result in a contingent election in the House under any circumstances.* Here's why:
First: the article is simply incorrect that the count of the electoral votes "must end" within 5 days. The relevant statute, 3 USC 16, says that if the objections and debates last longer than 5 days, then "no further or other recess shall be taken by either House."
In other words, if the delay lasts 5 days then neither the Senate nor the House gets to take any breaks.
The statute also says, unequivocally, that the "[j]oint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared." So Congress counting the electoral votes goes on, through the objections and debates, until it's done. Period.
Second: okay, so there's no deadline at 5 days after January 6. But there are only 2 weeks until January 20--what happens if Congress *still* hasn't finished the electoral count by then? Do we get a contingent election in the House? No!
The Twelfth Amendment says the electoral votes "shall be counted" and *then* "if no person have such majority," we get a contingent election in the House. In other words, only if no candidate has a majority *when Congress finishes counting.* So what happens on January 20??
In gallops the Twentieth Amendment, which contemplated *precisely* this possibility: "If a President shall not have been chosen before the time fixed for the beginning of his term . . ., then the Vice President elect shall act as President until a President shall have qualified."
But there wouldn't be a Vice President elect chosen yet either. And yet again, the Twentieth Amendment saves the day: "Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President."
And who has Congress chosen by longstanding law to serve as Acting President if there is no President nor Vice President in office? The Speaker of the House of Representatives, an office to which Speaker Nancy Pelosi was reëlected earlier today. (Couldn't resist the umlaut.)
In sum: if Republicans object to the counting of electoral votes under the Electoral Count Act, they can potentially drag the process out for a while. But in *NO* case would this result in a contingent election in the House.
And the Twentieth Amendment is clear that "[t]he terms of the President and the Vice President shall end at noon on the 20th day of January." An incumbent president leaves office, no matter what, on January 20 unless he is reelected. No arcane legal maneuvering can change that.
