My last post, which ventured electoral math, ended with a scenario that give us a plausible 269-269 electoral tie between President Trump and Joe Biden. You might have wondered: what would happen next? (You know, aside from all the rioting.)
If both candidates are kept under the majority threshold of 270 electoral votes, Article II, Section 1 of the Constitution creates a contingent election settled by the newly elected U.S. House of Representatives. 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 gets to pick from the top three electoral vote earners.
Critically important is that this process is not “one Representative, one vote.” Instead, the U.S. House delegations from each state vote between themselves, and each state gets one vote. 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 there are more Republican-leaning states than Democratic ones. Below is a map that shows what party has a majority of a state’s U.S. House seats.
Republicans control a majority of these delegates, thanks to Republicans’ popularity in rural areas. Democrats’ popularity is in dense population centers on coasts, but population means little in an electoral tie. Wyoming, for example, would have as much of a say here as California, despite California having a population roughly 65 times larger.
2. As a result, the smaller the delegation size, the more power House members have from a state. Each House member that is the sole representative from a sparsely populated state would wield enormous influence, as much as the 53 members of California’s House delegation combined. North Dakota and its one House member would have as much of a say here as Texas and its 36.
The process would result in Wyoming, Alaska, Montana, Idaho, and the Dakotas — Republican strongholds all — each having their one powerful House member cast a vote for President Trump, and they’d cancel out heavily Democratic California, New York, Illinois, New Jersey, Michigan, and Washington voting for Joe Biden, even though those latter states represent a few hundred times more people.
3. Importantly, it’s the new Congress that casts these ballots — as in, the Congress that will get elected in five days. An electoral tie would bring new significance to down-ticket races. If Democrats significantly increase their House majority, that might help them make strides in the above map.
4. Because it’s the new Congress that decides, the electoral tie remains in place until the new Congress convenes on January 3. For at least two months we wouldn’t have a winner.
5. Technically, even with only two major candidates, there’s a chance neither gets to 26 states. Not only is there the possible 25-25 tie, but many states have an even number of House members. If those delegations deadlock — say, if Wisconsin’s eight House members split 4 to 4 — neither candidate wins the state. That could shrink the pool of winnable states, but it does not lower the threshold of 26 states needed to win the contingent election. About half the states have even-sized delegations, giving plenty of opportunity for these deadlocks. On the other hand, only Pennsylvania’s delegation is currently split evenly between Democrats and Republicans, so I don’t think the total pool would shrink by much.
6. 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. In 1800, a tie between 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.
If Inauguration Day (January 20) 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 newly elected Senate to pick the vice president from among the vice presidential choices.
Here, it is “one Senator, 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 in the event of a tie the Republicans still control most states’ House delegations and go with Trump (likely), but the Democrats gain control of the Senate and go with Kamala Harris (possible!). They therefore become the President and Vice President for their four year term together. It could happen.
Incidentally, having a president and vice president from different parties is not without precedent. After the Election of 1796, Democratic-Republican Thomas Jefferson served as Federalist John Adams’s VP because the original Constitution, not anticipating political parties, said the runner up in the Electoral College, as ostensibly the nation’s second most popular political figure, should become vice president. Jefferson had finished three electoral votes behind Adams to become the VP. (The Twelfth Amendment got rid of that rule and put the two offices on the same ticket.)
In 1864, Republican Abraham Lincoln reached out to Democrat Andrew Johnson to be his second term vice-president so they could start to heal the divided nation.
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 — and without a vice president to break it.
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 likely to remain Nancy Pelosi. Of course, she’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 the election ostensibly gave us a 269-269 tie. Remember that the Electoral College is made up of 538 people called “electors” who represent their home states. When we cast our ballots in the voting booth, we’re actually voting for a state parties’ 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, though they rarely do.
So, in the case of a 269-269 tie, a faithless elector theoretically could break the tie by voting for the opponent of the state and party’s preferred candidate, sending this opponent to a 270-268 win. Worth noting is that an abstention (like the one that happened in 2000 with a DC elector), or an elector switching to a random third name (which happens more frequently), would not be enough, as the leading candidate, despite the 269-268 lead, would still be short of a 270 majority. The faithless elector would have to switch sides to prevent the deadlock.
Could. You. Imagine.
Okay, that’s enough of that. Tomorrow it’s time to examine the race for the Senate! I hope to see you then.