In D.C. this week, a theory is being floated by Democrats that if the election goes to the courts, as they are planning if Trump wins, and no decision is handed down by the Supreme Court by inauguration day on January 20th, then the speaker of the House, likely Nancy Pelosi, would be the acting president. Many disagree with that hypothesis. One analyst who does not is Fox News pundit Judge Andrew Napolitano.
“It might be right,” Napolitano told Fox News host Stuart Varney. “President Trump’s term ends at precisely noon on Jan. 20, 2021. If the Electoral College has not yet named a successor, presumably either Donald Trump or Joe Biden, then whoever is the speaker of the House would become the acting president of the United States. If the Democrats retain their majority in the House, and it appears likely that they will, but if they do, and if they choose Mrs. Pelosi, knowing at that point that they’re choosing the president of the United States, then it would be she… Stated simply, whoever is the sitting speaker of the United States, would become president at noon on Jan. 20, 2021, if the Electoral College has failed to elect someone.”
Napolitano said (and he is absolutely correct on this) if the Electoral College can’t choose a president, the election would go to the House of Representatives. That process does not call for a majority vote, but a vote state by state in which each state delegation would vote on their own, regardless of their state’s election results. Whoever has a majority of 26 states would become president. That majority would likely be with Trump, as he won 30 out of 50 states in 2016.
“That has happened,” Napolitano mentioned. “That’s how Thomas Jefferson was elected the first time around in 1800.”
Tally of electoral college votes in the election of 1800. No candidate won a majority, so an election in the House of Representatives took place, with Jefferson winning on the 36th ballot. pic.twitter.com/QBw2K1nN19
— Truman Capoeti (@TCapoeti) September 1, 2020
Another comparison with the election of 1800, and more so with 1828, is the vehement loathing the two sides had for each other and how that was reflected in the political discourse.
1800 saw a rematch of 1796, with Thomas Jefferson of the Democratic Republicans (I know) versus incumbent President John Adams of the Federalists. Jefferson called Adams “a hermaphrodite.” Adams said you couldn’t vote for Jefferson because he was dead. Jefferson said Adams wanted to give the country back to Great Britain and go to war with France. Adams said Jefferson would kill all the rich and good-looking people, as had the French Revolution. Jefferson said Adams wanted to be king. Adams said Jefferson was sleeping with his slaves. Okay, score one for Adams. Jefferson won.
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1828 was even dirtier and made 1800 look like a summer stroll through daisies. It featured the very Trump-like Andrew Jackson (it was also a rematch, from 1824) of the Democrats versus the incumbent president, the son of the guy above, John Quincy Adams of the National Republicans. Adams said Jackson was a heartless slave trader and his wife was his “concubine” and an “adulteress.” She was neither and Jackson never forgot the libel against his wife in Republican papers. Jackson said Adams wanted a dynasty and made remarks about Adams’ personal appearance. Adams was not a physically imposing man. Adams said Jackson had killed many men in duels and personal quarrels and liked it. Okay, score another for the Adams family. Jackson won.
So we’ve been down this rhetorical road before. Let’s hope the election result and aftermath aren’t as familiar.