Under that scenario, which hasn’t happened since 1876, every state’s delegation gets a single vote. Who receives that vote is determined by an internal tally of each lawmaker in the delegation. This means the presidency may not be decided by the party that controls the House itself but by the one that controls more state delegations in the chamber. And right now, Republicans control 26 delegations to Democrats’ 22, with Pennsylvania tied and Michigan a 7-6 plurality for Democrats, with a 14th seat held by independent Justin Amash.
A battle inside the House could be brutal, even more politically bare-knuckled than Trump and Senate Republicans pushing through a Supreme Court nominee days before the election. In some states, a single seat could decide the partisan makeup of a delegation. There could be extended legal challenges over declaring victors in House races, as national party leaders and their legal teams dive headlong into the results for individual races at the county or even precinct level.
Pelosi, in a Sunday letter to House Democrats, urged them to consider whether the House might be pulled into deciding who is president when determining where to focus resources on winning seats in November. This could lead to more concerted efforts by Democrats to win in states such as Montana and Alaska — typically Republican turf but where Democrats have been competitive statewide. In these states, Democratic victories could flip an entire delegation with a single upset House victory.
“The Constitution says that a candidate must receive a majority of the state delegations to win,” Pelosi wrote. “We must achieve that majority of delegations or keep the Republicans from doing so.”
Pelosi has also raised the issue repeatedly in recent weeks with her leadership team. Other senior House Democrats told POLITICO they’d heard about these concerns from colleagues in recent weeks.
“We’re trying to win every seat in America, but there are obviously some places where a congressional district is even more important than just getting the member into the U.S. House of Representatives,” said Rep. Jamie Raskin (D-Md.), a constitutional lawyer.
Trump, too, has taken notice of the obscure constitutional resolution to a deadlocked Electoral College, both in public and private.
“And 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?” Trump said at a rally in Pennsylvania on Saturday. “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.”
In private, Trump has discussed the possibility of the presidential race being thrown into the House as well, raising the issue with GOP lawmakers, according to Republican sources.
Under the Constitution, the winner of the presidential election isn’t officially chosen until Congress certifies the Electoral College vote total on Jan. 6, 2021. That vote comes several days after the newly elected Congress is sworn in, meaning the delegation totals will change to reflect the winners of House races in November.
If neither Biden nor Trump has secured the 270 electoral votes required to win, the newly seated House delegations will then cast votes to determine a winner. States whose delegations reach a tie vote are not counted.
But it’s more than a math equation. If the House is asked to resolve an Electoral College stalemate, the country will be witnessing one of harshest exercises of raw power in history. If Democrats retain control of the House, they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.
An informal whip count has already begun. Democrats hold a one- or two-vote seat edge in seven states that are expected to feature at least one sharply contested House race: Arizona, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire. Republicans hold a similarly tenuous edge in Florida. The Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally.
Pennsylvania’s House delegation is split evenly between the parties, but Democrats are expected to pick up seats after a redistricting that blunted some GOP advantages. Michigan is a wildcard as well, despite the slight Democratic edge in the delegation makeup. Amash, an independent who supported Trump’s impeachment, is retiring, with his seat likely to go to a Republican Trump ally who would leave the delegation deadlocked.
A Democratic Party strategist said the party apparatus was still primarily focused on protecting Democrats in vulnerable districts. But winning state delegations is also on the radar — especially in states where the efforts align.
“It is fair to say that this is something that folks have been thinking about,” the strategist said. “There is a great deal of overlap like Alaska, Montana.”
Sarah Ferris contributed to this report.