What If It’s a Tie?

My last post, which broke down premature electoral math, closed with scenarios that give us a 269-269 electoral tie between Hillary Clinton and Donald Trump. You might have wondered: what would happen next?

If it is a tie (or if, let’s say, a third candidate wins enough electoral votes to keep all three candidates under 270 electoral votes, even if one candidate finishes with a plurality), then, according to Article II, Section 1 of the Constitution, the U.S. House of Representatives gets to determine the next president. The Twelfth Amendment later specified that the House could choose “from the persons having the highest numbers [of electoral votes] not exceeding three on the list.” In other words, the House has to pick from the top three electoral vote earners.

Critically important is that it’s not “one Congressman one vote.” Instead, the U.S. House delegations from each state vote between themselves, and each state gets one vote, depending on how that delegation votes. For example, my home state of Connecticut has five members in the  U.S. House. If three of them vote for the Democratic candidate and the other two for the Republican, Connecticut’s single vote goes toward the Democrat. It would be the same result if all five voted for the Democrat (which, let’s face it, would probably happen — it’s Connecticut we’re talking about).

If any candidate, through that process, wins a majority of the states — 26 of the 50 — they become president. Simple enough, right?

But leave it to PPFA to highlight ten interesting wrinkles with this process.

1. These days, the above tie-breaking process would favor the Republican because A) Republicans have a majority in the House, and B) there are more Republican-leaning states than Democratic ones. The Democrats’ strength in the Electoral College stems from controlling dense population centers, usually concentrated in coastal and northern industrial states, but population means little in an electoral tie. Wyoming and its one House member would have as much of a say here as California and its 53, despite California having a population roughly 65 times larger. Indeed, not just Wyoming, but Alaska, Montana, Idaho, and the Dakotas — Republican strongholds all — each have just one House member who would cast the only vote for their state in the case of an electoral tie. Those six states can cancel out heavily Democratic California, New York, Illinois, New Jersey, Michigan, and Washington, even though those states represent a few hundred times more people.

2. As a result, the smaller the delegation size, the more power House members have from a state. Each of those solitary delegates would wield enormous influence, as much as the 53 members of California’s House delegation, or Texas’s 36, combined.

3. Even with only two candidates, there’s a chance neither gets to 26 states. In addition to the possible 25-25 tie, many states have an even number of House members. If those delegations deadlock, neither candidate gets the state. That could shrink the pool of winnable states, but it does not lower the threshold of 26 states needed to win the election. About half the states have even-sized delegations, giving plenty of opportunity for these deadlocks. On the other hand, most of them don’t break evenly between Democrats and Republicans, so I don’t think the total pool would shrink by much.

4. Importantly, it’s the new Congress that casts these ballots — as in, the Congress that will get elected in November. An electoral tie would make down-ticket races, and the much-talked-about Trump effect on them, even more significant. Of course, if there’s an electoral tie, it’s unlikely Trump would have had much of an effect on Congressional races.

5. Because it’s the new Congress that decides, the electoral tie remains in place until the new Congress convenes on January 3. For two months we wouldn’t have a president-elect.

6. You might be wondering: What if neither candidate earns 26 states in the House tie-breaker? Well, they’d have to keep doing ballots until one of them does. Our only electoral tie — the Election of 1800 between Democratic-Republicans Thomas Jefferson and Aaron Burr — resulted in 36 ballots over the course of a week in 1801. It took Jefferson’s long-time rival, Alexander Hamilton, to surprisingly convince enough of his fellow Federalists to support Jefferson, whom Hamilton regarded as principled, even if they usually disagreed politically, whereas Burr lacked all conviction. As a result, Burr lost and became VP, so, naturally, he shot and killed Hamilton.

So these ballots could take a while. If Inauguration Day rolls around and we still don’t have a decision from the House, the newly elected vice-president assumes the office until the House finally breaks the deadlock.

7. “But wait a minute!” you might interject. “How is there a new vice-president if they haven’t figured out who won the election on top of the ticket?!” I’m glad you interjected! The House only has the Constitutional authority to pick the president, not the vice-president. Instead, it falls on the Senate to pick the vice-president from among the vice-presidential choices. Here, it is “one Congressman one vote.” If either VP candidate earns the votes of 51 of the new senators, he or she wins the office and would be acting president if the House can’t first come to its own conclusion on the presidency.

8. It’s therefore conceivable that the new president and vice-president come from different parties. Let’s say the Republicans, thanks not only to retaining the majority in the House but also controlling most of the states’ House delegations, go with Trump, but the Democrats gain control of the Senate and go with Clinton’s VP. It’s possible.

Incidentally, having an executive branch with two parties is not without precedent. After the Election of 1796, Democratic-Republican Thomas Jefferson served as Federalist John Adams’s vice-president because the original Constitution, not foreseeing political parties, said the runner up in the Electoral College became vice-president, and Jefferson finished three votes behind Adams. (The Twelfth Amendment got rid of that rule.) In 1864, Republican Abraham Lincoln reached out to Democrat Andrew Johnson to be his second term vice-president.

9. “But wait another minute! What if neither the House nor the Senate reaches a majority??” That’s possible, too, since the Senate can finish in a 50-50 tie. In that case, the presidential line of succession dictates that the new acting president starting on Inauguration Day would be the Speaker of the House. That’s right, establishment Republicans — Paul Ryan might still have his day in the White House! Of course, he’d only be in charge until a president or vice-president was chosen by the respective chamber of Congress.

10. Finally, we can’t forget about a potential “faithless elector,” which might stop this tie-breaker chaos from developing even if Election Day did ostensibly give us a 269-269 tie. Remember that the Electoral College is made up of 538 people called “electors” who cast their ballots for candidates. When we cast our ballots in the voting booth, we’re actually voting for electors who have pledged loyalty to the candidate for whom we think we’re voting. The electors usually got their job from the state party, a state party convention, or a party primary, so their loyalty to the party is extremely strong. Still, though some state laws mandate that the elector casts his or her ballot for the candidate the state voted for, the rest trust the electors to make the choice on their own. In those latter states, those electors could cast their ballot for a candidate that did not win the state.

How often have we had a faithless elector? You might be surprised: it’s happened 157 times in American history. Most recently was in 2004, when an elector who was supposed to cast his vote for John Kerry instead voted for his running mate John Edwards, giving us a final electoral count of Bush 286, Kerry 251, Edwards 1.

So, in the case of a 269 – 269 tie, a faithless elector could break the tie by voting for the opponent of the state and party’s wishes. (Worth noting is that an absention, like the one that happened in 2000 with a Gore elector, would not be enough, as the leading candidate, despite the 269-268 lead, would still be short of a 270 majority.)

Bonus scenario! Remember when, near the beginning of this column, I parenthetically noted that if “a third candidate wins enough electoral votes to keep all three candidates under 270 electoral votes, even if one candidate finishes with a plurality,” we’d still have to go through this process. Let’s say, hypothetically, that John Kasich decides to run as a third party, calling himself a “Real Republican.” He then spends all his time in his home state of Ohio and the bordering state of Pennsylvania, which combine for 38 electoral votes. Through this electoral haul, he might keep Trump and Clinton under 270, throwing the election to the House. The House, controlled by Republicans, gets to pick from the top three candidates, and John Kasich is one of them. Do they vote for him?

It depends, I guess. Do they want the country burned to the ground?

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Will both of these candidates be held under 270 electoral votes? Almost certainly not. But we pundits, after having our wish for a contested convention ripped from us, can dream.