The potential outcomes of the 2024 election are a prospect of the utmost importance to many Americans right now.  Many people are feeling as if a contestation of the results is automatic, after what happened in 2020.  Using history as a way of predicting these outcomes, however, is not the answer.  The pressing nature is not a reason to engage in prediction, in fact it probably makes the reasons for avoiding prediction even stronger.  But lessons from the past can still help us to contextualize potential futures.  One of the major ways we can use historical lessons is to take stock of potential options should the election be contested, which is what I will do here.

There are three broad ways of contesting an election, as the past tells us.  To overturn the results, one can attack the electoral count in Congress, in the Courts, or one can attack the voting process itself.  In this post, I will focus on the relevant parts of a Congressional challenge to the electoral count, as seen in previous elections.

One avenue that appears to be a difficult one after the 2020 election is the certification of votes by the Senate itself.  In the 2020 election, Trump placed pressure on Vice President Mike Pence to approve an alternate slate of electors that would elect Trump instead of Biden.  Pence resisted this pressure, reaffirming the pastoral role of the Vice President in the electoral count.  The same pressure is unlikely to exist in 2024, as Kamala Harris will still be the Vice President, making the Vice Presidential avenue of Congressional contestation unlikely, although potentially still possible.  The avenue from 2020 that is likely still on the table is objections to certain state’s electoral slates by individual congresspeople.  In 2020 this failed because most congresspeople did not support rejecting the electoral slates, but this resistance may have changed based on recent rhetoric from many congresspeople.  Still, the amount of support in Congress required to make this avenue successfully challenge an election is worth keeping in mind moving into 2024.

A second possible path to contestation involving Congress is the standard set in 1876.  In 1876 a committee was created to resolve the competition between slates of alternate electors sent in by some states.  This bipartisan committee included members of the Senate, the House, and the Supreme Court (but not in their capacity as justices).  This was considered one of the better compromises that could be put together on short notice and was effective in deciding the election before the inauguration deadline.  It seems possible that some congresspeople would (and did in 2020) favor this solution in the event of a contested election, as state submission of alternate states is a potential concern in the upcoming election, since it has happened before in 1876.  The thing that makes this solution unlikely is that it requires agreement in the legislature, as it is not a procedure that is laid out in any law.  In 1876 it was the solution chosen under the authority of Congress to resolve the electoral dispute, but today the challenge system that was employed in 2020 (dual sponsorship of a resolution to debate a slate of electors) is a procedure written into the Electoral Count Act of 1887, making that the more likely system of resolution in the legislature.

Of course, there is always the possibility that neither candidate gets a majority of the electoral vote, leading to the election being decided in the House of Representatives.  The precedent there is clear, and the procedures to get there relatively strict, restricting this path to a contested election to a very narrow set of circumstances.  Should it happen, however, there would likely be a very political contest, as it is unclear how exactly states will decide their individual votes.   Overall, many of the potential paths to contesting the 2024 election could pass through Congress but it is not a guarantee.