Speaker Nancy Pelosi is privately urging House Democrats to prepare for a doomsday scenario where the 50 state delegations to the House of Representatives must decide whether Joe Biden or Donald Trump will be the next president.
If neither candidate reaches the requisite 270 electoral college votes by 6 January 2021, it is up to the House of Representatives to determine the winner, the US Constitution dictates.
The new Congress will be sworn in on 3 January, meaning the upcoming congressional elections would be pivotal for deciding whether Mr Trump gets a second term or not under such a scenario.
In a letter to House Democrats dated 27 September, Ms Pelosi urged her colleagues to redouble their efforts to flip several crucial congressional seats this November that could deliver the majority of state delegations into Democratic hands.
“We have outstanding candidates in these key districts and they have built strong campaigns, but we must forcefully ensure they win,” Ms Pelosi wrote in her letter, urging her caucus to help fundraise for the Democratic leadership-aligned House Majority PAC that is aiding candidates in close races across the country.
“Simply put, this strategy to protect our democracy and elect Joe Biden will take an all out effort and resources,” she said.
While Democrats hold a 232-198 member advantage in the House overall, Republicans have member majorities in more states.
That edge is key, because the 12th Amendment gives each state one vote to break an electoral college stalemate, and each state’s vote is determined by the votes of its congressional delegation.
The GOP controls 26 state congressional delegations this Congress, including all five states — Montana, Alaska, North Dakota, South Dakota, and Wyoming — that have just one House seat.
Democrats have 22 delegations in the bag, dominating many of the more densely populated states such as California and New York.
Two states, Pennsylvania and Michigan, have an equal number of Democrats and Republicans in the House.
“Because we cannot leave anything to chance, House Majority PAC is doing everything it can to win more delegations for Democrats,” Ms Pelosi wrote in her letter over the weekend. “It’s sad we have to have to plan this way, but it’s what we must do to ensure the election is not stolen,” she wrote.
Mr Trump has indicated recently that he will challenge the results of the election all the way to the Supreme Court if initial tabulations show him losing to Mr Biden. He has hurled unfounded attacks against the integrity of mail-in ballots throughout the coronavirus pandemic as millions of voters plan to cast their votes by mail for the first time this year to mitigate exposure to the virus from standing in line on Election Day.
Mr Trump said at a White House press conference earlier this month that it could “take forever” for state election officials to count mail-in votes and that “at a certain point it goes to Congress” to determine the winner.
If the GOP — which is mobilising thousands of attorneys at the local, state, and national level to potentially bring legal challenges to election results — successfully delays confirmation of those results until 6 January, depriving Mr Biden of the 270 electoral college votes he needs to certify his victory, then the choice of president would be kicked over to the House delegation vote.
Mr Trump alluded to the strategy and the GOP’s edge among congressional delegations at a campaign stop in Pennsylvania on Saturday.
“I don’t want to end up in the Supreme Court, and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress — does everyone understand that?” the president said.
“I think it’s 26 to 22 or something because it’s counted one vote per state, so we actually have an advantage. Oh, they’re going to be thrilled to hear that,” he said.
Ms Pelosi panned Mr Trump’s notions about the election as cynical and a threat to the integrity of US democracy.
“If Trump can’t win at the ballot box, he wants the House to deliver him the presidency,” Ms Pelosi wrote in her letter on Sunday.
The president “has made it increasingly clear that he will do whatever it takes to remain in power,” she wrote.