I have a constitutional question. If I'm correct, many articles about the Electoral College process are wrong on an important point.
Many people are discussing "what if the election gets thrown to the House, with a vote by state delegations?" This is probably inspired by the possibility of some state's election being so fubar that no electors are appointed from that state, and as a result no candidate gets to 270 Electoral College votes. But I don't think that's how it works!
Normally there are 538 electors, 50% of that is 269, so 270 is a winning majority (while 269-269 is a tie thrown to the House under the 12th Amendment.) But if no one is appointed to some Electoral College seats, so there are fewer than 538 Electors actually appointed, what happens? (This might happen if results are never certified, a state legislature intervenes and refuses to appoint electors, SCOTUS strikes down a state's appointment of electors, etc.)
I've seen articles touching on this subject in recent weeks, for example exploring what happens if no electors are appointed from Pennsylvania, usually seen as necessary for Trump to reach 270. (I think Trump will exceed 270 even disregarding Pennsylvania, but that's not important for this thought experiment and legal question.)
In every article I've seen, it's stated as fact that if no candidate reaches 270 Electoral College votes, the election is thrown to the House. I believe that is incorrect. From the 12th Amendment, the Electoral College winning threshold is defined as "a majority of the whole number of electors APPOINTED".
"… 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 …"
To lay out a specific scenario: Suppose Trump flips Georgia and Michigan, and Pennsylvania doesn't appoint anyone to their Electoral College seats. Then, the Electoral College vote would be Trump 264, Biden 254. No candidate reaches 270, but Trump has a majority of the 518 Electors actually appointed. From a plain reading of the 12th Amendment, it seems that Trump would be elected President by the Electoral College, and the election would NOT be thrown to the House.
This seems pretty important. I can't think of ANY normal scenario where this election gets thrown to the House, despite all the talk about this possibility!
The mathematics: Suppose all appointed electors are expected to vote for one of two major party candidates (as is the case in 2020), e.g. there is no three-way split in which candidates win states. Suppose there are no "faithless electors" who vote for someone besides Trump or Biden, so these are the only two candidates receiving votes in the Electoral College. And suppose every appointed elector casts a ballot. Then, the ONLY way the election would be thrown to the House is if there is a tie. If every appointed elector casts a ballot for one of two candidates, and one of these candidates gets more Electoral College votes than the other, they'll have a majority of the whole number of electors appointed. I think the only way the election gets thrown to the House is if (1) neither candidate receives 270 Electoral College votes, AND (2) either there is an exact tie, or some of the appointed electors bound to the candidate expected to win the Electoral College majority eliminate that winning majority by either not voting at all, or voting for someone else.
Most importantly, I think elections don't get thrown to the House, even if neither candidate reaches 270 Electoral College votes, if this is sub-270 result for the leading candidate is due to some states not appointing electors.
If this is accurate, it would be nice if articles laying out "what if" scenarios would read the Constitution correctly. If this is not accurate, I'd like to know why!