President Donald Trump’s recent attacks on voting integrity have opened a Pandora’s box of unlikely “what if” scenarios for after the election, the kind that keeps constitutional scholars awake at night. In doing so, Trump has unwittingly elevated a handful of contested congressional races where the outcome could conceivably determine who is the next president.
The contest between Democrat Alan Cohn and Republican Scott Franklin for Florida’s 15th Congressional District is one of them.
Under the Constitution, the House of Representatives settles disputed presidential elections in a vote where each state’s congressional delegation speaks as one voice. And as it stands, Florida’s delegation includes 14 Republicans and 13 Democrats.
District 15 is currently held by a Republican, outgoing U.S. Rep. Ross Spano, meaning the outcome there could change which party controls Florida’s vote.
A simple majority — 26 states — are needed for a presidential candidate to win a vote in the House of Representatives. Republicans control the delegations in 26 states.
If Cohn defeats Franklin, and Democrats hold the line elsewhere, Trump would lose a critical vote and former Vice President Joe Biden would gain one.
“This one district in Florida could be very important,” said Andrew Busch, a government professor at Claremont McKenna College in California.
The University of Virginia Center for Politics, tracking this scenario, predicts Republicans will maintain control of 26 delegations, with Democrats holding 22 and two tied.
A little over 500,000 voters are spread across Florida’s 15th Congressional District, a sprawling expanse that swallows Tampa’s north suburbs, Brandon and some of Riverview. The district slips north into Lake County and reaches out east to Plant City, past its famous strawberry fields toward the streets of downtown Lakeland in the heart of Polk County and down to Bartow. It includes much of the area between Tampa Bay’s beaches and Orlando’s theme parks known as the Interstate 4 corridor.
There are other Republican-held seats in Florida that Democrats are challenging, but District 15 presents the shortest uphill climb. Voter registration between Democrats and Republicans is almost evenly divided there. It’s fast-growing — one-third of homeowners moved in within the last three years, according to the U.S. Census Bureau — and turning more purple as two metropolitan areas converge on it. The Democratic Congressional Campaign Committee recently added the race to its selective Red to Blue Program for flipping seats.
Unlike elsewhere, there’s not a well-funded incumbent to fight. Spano won the district in 2018 and spent the next two years under a cloud of scandal stemming from investigations into his campaign. Franklin, a Navy veteran and first-term Lakeland city commissioner, disposed of Spano with relative ease.
The added significance of the District 15 race hasn’t been lost on Cohn, the Democratic candidate and a former investigative television journalist in Tampa Bay.
In early September, he fired off a fundraising email accusing Trump of “laying the groundwork to claim election fraud, nullify the results and steal the presidency.” But there is a remedy, Cohn suggested.
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“Flipping FL-15 needs to be treated as every bit as important as the presidential race itself to safeguard our democracy," he wrote.
Cohn also went on MSNBC’s “Morning Joe” on Wednesday, sharing the spotlight with Newsweek editor-at-large Tom Rogers, who recently warned in his magazine that Trump could lose the election but hold on to power. In that piece, Rogers highlighted District 15′s looming role in the outcome of that fight, as well as as Democrat Margaret Good’s challenge of U.S. Rep. Vern Buchanan, R-Sarasota, in Florida District 16, Montana’s at-large House seat and a Republican-leaning district in Pennsylvania. Alaska’s statewide House race is another to watch.
Cohn said that, within minutes of his conversation on 'Morning Joe," tens of thousands of dollars poured in his campaign.
“There have been times in the last two or three weeks, where I make my standard call to people, and before I can get a word out they are talking about how important my race is,” Cohn said.
Franklin, Cohn’s opponent, said he hadn’t considered the District 15 race’s in this way until Cohn discussed it on TV on Wednesday.
“I don’t know how many different hoops it would take to jump through to get there. That’s not really been my focus," Franklin told the Tampa Bay Times on Thursday. "I’m focused on the concerns of the constituents of the district. Those types of things will play out but I figure if it does, I’m working to retain this seat in case that scenario comes into play.”
The scenarios that would throw the election to the House of Representatives, as the Constitution dictates, are unlikely but increasingly debated as Trump wages a public battle against mail-in ballots and refuses to commit to a peaceful transfer of power. Trump himself recently suggested he was prepared for the election to come down to the House of Representatives during a White House press conference.
“It’s not just the counting of the ballots, which, by the way, will take forever. It’ll take forever," Trump said last week. “You think November 3rd? You might not have — I guess, at a certain point it goes to Congress. At a certain point it goes to Congress — you know that.”
The new Congress is seated on Jan. 6, two weeks before the inauguration of the next president.
The most straightforward path to a contested election is an Electoral College tie, 269 to 269. The last time that happened was in 1800, when the Electoral College electors, not the public at large, voted for president. Election forecasting website FiveThirtyEight estimates the chances of that happening in 2020 are less than 1 in 100.
“You can always create a permutation that would come out as a tie but realistically it’s extremely unlikely,” Busch said.
Other possibilities are far more complicated and troubling. For example, what if delays in the U.S. Postal Service and the surge in mail-in ballots compounds into hundreds of thousands of ballots showing up on or even after Election Day in swing states like Pennsylvania, Michigan and Wisconsin? Trump has already made baseless suggestions that vote-counting that lasts for days will be rife with fraud, even though it traditionally takes weeks to certify election results.
In his Newsweek article, Rogers posited that in the event of long delays or close tallies, Republican-controlled legislatures might dismiss the outcome and vote to advance their own slate of electors, throwing the results into question and leaving it up to the House of Representatives to decide. In 2000, Florida Republicans in control of both legislative chambers rammed through electors for George W. Bush while the election remained in a legal battle.
“We cannot let ourselves believe that this is a far-fetched scenario,” Rogers wrote.
Derek Muller, an elections law professor at the University of Iowa, said while both parties have been on high alert since Bush v. Gore in 2000, disputed elections are “exceedingly rare." There are few examples in U.S. history.
In the 1876 presidential election, multiple states, including Florida, were accused of widespread election fraud. It nearly presented a constitutional crisis before Democrats conceded the election in exchange for the end of Reconstruction in the South. Hawaii in 1960 sent two slates of electors in the presidential elections after a close election, but one slate was dismissed without much controversy.
“People say anything can happen because it’s 2020," Muller said. “But the historical record is it’s been 200 years since the House has had to decide an election, it’s been 70 years since a state had two slate of electors, and 140 years since Congress had to throw out a slate. These are not mainline scenarios."
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