Evan A. Davis and David M. Schulte, both law clerks for Justice Potter Stewart at the Supreme Court of the United States, wrote an op-ed urging Congress to nullify electoral college votes for Trump under the insurrection clause. While unlikely to happen, let’s say it did. Who becomes President on Jan 20?
If the vote is nullified, would that include the VP-elect? Would Harris become President? Would it be an as-yet unselected Speaker?
If there are not enough certified electoral votes to make out a majority for president or vice-president, it would go to what is known as a contingent election wherein the House would select the president from among the three highest presidential electoral vote recipients and/or the Senate would select the vice-president from among the two highest vice-presidential electoral vote recipients.
This is not like a brokered convention where party delegates are free to choose whomever as the party nominee.
The text of the Twelfth Amendment is clear on this point:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;–the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.–]The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Note that the "trigger" for a contingent election is a failure to reach a majority "of the whole number." This leaves it ambiguous as to whether that "whole number" is 538, or the whole number of votes remaining in the case that Congress rejects some electors as having been unlawfully appointed. This ambiguity was addressed in the 2022 Electoral Count Reform Act (Pub. L. 117–328, div. P, title I, §109(a), Dec. 29, 2022, 136 Stat. 5237), section 109, which amends 3 USC § 15 to clarify that the denominator in such a circumstance is reduced, making it more difficult to trigger a contingent election. See today's 3 USC § 15(e)(2):
If the number of electors lawfully appointed by any State pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is fewer than the number of electors to which the State is entitled under section 3, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.
Section 109 is only about the case that electors were not appointed or where electors were objected to. It does not purport to clarify the situation where a validly appointed elector casts a vote for someone who Congress deems to be ineligible under Section 3 of the Fourteenth Amendment, leaving some ambiguity about the denominator in that case. The op-ed you link to either missed this or skipped over their reasoning that leads them to the conclusion that an objection on the grounds that an electoral vote was "not regularly given" would result in "the number of votes required to be elected [being] reduced by the number of disqualified votes."
Obviously, this isn’t going to happen, but to embrace the absurdity, let’s assume that the Senate refuses to certify the votes for Trump. As there is no majority winner of the Electoral College, the decision of who becomes President falls the the House, and vice-President to the Senate.
In either case, it can be anyone who is eligible- they don’t have to have been a candidate in the general election.
