Political junkies and history buffs have spent weeks dreaming about the unlikeliest possible scenarios that could determine the 2016 election: contested conventions, third-party bids, a cross-party ticket. But here’s one prospect they probably haven’t thought of: There’s a legally sound scenario in which John Kasich could single-handedly pick the next U.S. president. And it’s all thanks to a federal law that’s been on the books since 1887. It’s a far-fetched outcome, to be sure, but here’s how that could happen—and why Congress should consider revising that 130-year-old law. It starts with a serious ballot dispute in November, something like the contested results in Florida during the 2000 election—the odds of which aren’t trivial. Setting aside the very real prospect of a Hillary Clinton-Donald Trump nail-biter, the risk of a recount and related litigation is higher than it was in the past, thanks to a greater number of absentee and provisional ballots, which often get counted after Election Day. In this situation, the Supreme Court could step in to resolve the dispute. But the odds of that happening have probably decreased due to the vociferous criticism of the Bush v. Gore decision. Not to mention that in the wake of Justice Antonin Scalia’s death, there could still be only eight sitting justices in November; that also makes it more likely the court will stay out of the matter this time.
Under the Constitution’s Twelfth Amendment, the fight would then fall to Congress—which entirely lacks adequate procedures to decide a presidential election. In fact, the process for settling election disputes is so messy and uncertain that even experts disagree about how it’s supposed to work.
What Congress does have is that tangled 809-word statute passed in 1887 as part of the Electoral Count Act. The statute is intended to resolve disputes when a single state submits two different Electoral College vote counts—for instance, if there’s a contested county and its votes are enough to swing the state—and the Senate and House then split over which of the two counts to accept. With language so convoluted it was deemed “unintelligible” by the nation’s leading political scientist at the time of enactment, the law leaves debatable exactly what’s supposed to happen in this situation. Passed as a stopgap measure, it has never been replaced with a clearer or more executable plan.
A key provision of the act says that if the House and Senate are split, the governor of the state in dispute becomes the tiebreaker. This provision, still with us, presents two problems. First is the possibility of a serious conflict of interest for the governor. For instance, in 2000, Florida Governor Jeb Bush might have been tasked with deciding the election that his brother George went on to win. (That eyebrow-raising scenario did not come to pass because the Supreme Court decided Bush v. Gore before the Electoral College meeting in Florida that year, so Florida sent only one set of Electoral College votes to Congress after Al Gore conceded defeat.) This year, if Ohio turns out to be the pivotal state, as is certainly plausible, Governor Kasich might be in a position to pick the winner single-handedly. This would be strange enough if he’s just a former contender in the race, and stranger still if he is the GOP’s presidential or vice-presidential candidate.