Hail Mary (n.): a long forward pass in football, especially as a last-ditch attempt at the end of a game, where completion is considered unlikely. This is what Donald Trump’s campaign has left in terms of a path to presidential victory, a slim chance for an election win. Upon the certification of electoral college ballots on December 14 and the rejection of State of Texas v. Commonwealth of Pennsylvania by the Supreme Court, many legal paths for a Republican victory have been closed. Although an audit of electoral results can still be performed before Congress counts the vote on January 6th, the certification of those results makes an audit far more difficult to perform. However, Congress’s meeting to tally the final vote could open a final window of opportunity for Trump. Though unlikely, this is a wild maneuver that could end up with Trump in the electoral end zone.
What is this Trumpian trick play? On January 6th, Congress is scheduled to meet in order to verify and count the results of the electoral college vote. Multiple things could happen during this process, one of them being conflicting electors, which is when multiple electoral results come from the same state. Conflicting results are one thing Congress would have to look through on January 6th, since differing results mean either one or both are unreliable and are affected by an error in the counting. Even if there aren’t two official slates of electors, evidence of such a discrepancy could merit a reaction in the congressional counting process, similar to what they would do in the face of conflicting electors.
The most recent and prominent example of this happening was in 1876, when Rutherford B. Hayes won the presidency despite Samuel Tilden’s initial electoral lead when the polls closed. When significant voter fraud was discovered upon reviewing the electoral results, many votes were thrown out, creating a congressional committee to determine the winner of the election. At that point, Tilden owned the early advantage with both 184 electoral votes and the popular vote to Hayes’ 165 electoral votes, which left 20 votes contested. The committee, once they listened to the evidence behind each of the contesting claims, awarded all 20 to Hayes, leading to a 185-184 Republican victory in 1876. Though a similar situation remains unlikely in this election, especially since vote flips probably won’t be seen on January 6th, it’s possible the idea of conflicting slates appears in 2021. If the Republicans can produce significant evidence that there is some sort of discrepancy in the electoral results, the regular proceedings on January 6th are entirely up in the air.
It is entirely possible (even probable) that nothing substantive actually results from this scenario. In that case, Congress counts the electoral votes at face value with Vice President and President of the Senate Mike Pence’s approval. However, if the counting process is contested in January, considering 44 states have questioned the election process, then the counting session could look like nothing America has seen before. Although the process itself is not new (Democratic officials lead similar counts in 2001, 2005, and 2017), the end results of 2021’s attempt could look much different than its predecessors. First, the Senate and the House of Representatives would separately review the evidence before them and finally vote on whether the case is compelling enough to either flip or throw out the contested electoral votes. If nothing comes from that, then the Republicans have one last possibility to fall back on. As the President of the Senate, Mike Pence must approve the final tally Congress calculated. If he doesn’t, then that opens the door for potential future investigation or an outright removal of the offending ballots. A big “if,” but if no candidate wins 270 electoral college votes by the end of January 6th, whether by contested ballots or elimination of those ballots, then the election goes to election by delegation. This means each state allows one representative that currently serves in the House to vote, and the presidential candidate that has more votes wins the election for them wins the election. Since there are an equal number of states that voted for either party, Pence again would act as the tiebreaker in another potential Trump victory.
Thus ends the wild tale of how Trump could still pull a victory. Once again, several specific pieces must fall into place for this projected sequence of events to prove relevant following January 6th. After the Hail Mary pass has been thrown, what happens next is anyone’s guess.