Andy Craig
Andy Craig
As we head into a second Trump presidency, there’s no shortage of speculation about potential constitutional crises. One scenario getting attention is the possibility that Congress could fail to complete the formal counting of electoral votes on January 6, 2025, particularly if the new House of Representatives hasn’t managed to elect a speaker after they convene at noon today, January 3. It’s an understandable concern when Mike Johnson can afford to lose no more than one Republican vote, and a dozen or more are flirting with the possibility of not voting for him.
This raises an important question: Would such a failure leave the presidency vacant on January 20, throwing the nation into uncharted constitutional chaos? Would the order of presidential succession kick in, skipping past a vacant presidency and vice-presidency through the speaker of the House, if there is one, or the Senate president pro tempore, or beyond that to the secretary of state? The short answer is no.
The 12th and 20th Amendments, the Electoral Count Reform Act (ECRA), and the mechanics of the Electoral College itself make clear that Congress’s count is not what makes a person into the president-elect, duly entitled to take office on Inauguration Day. Even if Congress fails to act, Trump and J.D. Vance (setting aside 14th Amendment arguments about Trump’s eligibility) would still take office at noon on January 20, 2025.
Congress’s Role: Recognizing, Not Creating, the Result
The process of counting electoral votes is often misunderstood, with media coverage referring to it as “certifying” the result. It’s easy to think that the joint session of Congress somehow ratifies or finalizes the election. In reality, the count is merely a recognition by Congress of an event that has already happened: the appointment of electors by the states, the meeting and voting of those electors, » Read More
https://www.cato.org/blog/speaker-less-house-does-not-stop-presidential-transition