The nation’s 133-year-old law for picking a president has a provision that has never been needed to settle a disputed election, since it deals with a situation that would only happen after a cascade of seemingly improbable events.
Then again, this is 2020, a year that feels cursed with historic worsts.
And election law experts warn that Congress would be wise to clarify the provision before the country potentially faces this worst-case scenario: A full-fledged constitutional crisis if there is no clear Electoral College winner on Inauguration Day on Jan. 20.
“If you’re asking the question what should Congress do to prepare for November, that would be on the top of the list,” said Edward Foley, a constitutional law professor and director of Ohio State University’s election law program, who has written on the provision and hosted a recent online expert roundtable discussion on it.