• scottforbes

Post Election 2020: Should we prepare for the unexpected?

How many people know what the 12th Amendment to the Constitution of the United States is about? Yet, the process happens every 4 years. Now, more than ever, it might make sense to understand it.


Until the 12th Amendment process happens, there is not a President or VP elect, contrary to what the media and even politicians lead us to believe. But, before any of the 12th Amendment steps happen, the Secretary of State in each state must certify the votes for their state. No state has certified, yet. If a state can’t certify, the electoral college members for the state cannot be seated--hence, the state will not vote for President.


If all of the above happens as it usually does, then, the electoral college kicks in. If the electoral college members seated by each state cannot decide by majority the President elect, the US House of Representatives then decides the President and the Senate the VP. Each state in the House of Representatives gets only one vote for President—one vote only. 26 or more votes in the House decides the winner for President. Today, 30 states in the House have a majority of Republicans, with 19 being Democrat controlled. If the House is deadlocked...well, the 12th Amendment text describes what happens next.


Today, it's clear that the Supreme Court will be involved. Justice Alito has already ruled twice regarding Pennsylvania. The Supreme Count can invalidate an election. In which case the decision goes to the House. They could invalidate votes. In which case either candidate could lose votes and possibly states. The future is uncertain.


I spent 40 years in a career mostly helping clients (mentally and actually) identify risks, probability of outcomes, and prepare for the unexpected. I don’t know how this election will eventually play out. But, it might be prudent to prepare for the unexpected.


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Text of the 12th Amendment of the United States: “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 the 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.“