This was the type of question we used to bandy about in law school all the time. Hypothetical that rarely if ever happen, but are meant to illustrate the rough edges of our democracy. So, what does happen if the electoral college ends in a tie at 269-269? There are a lot of misconceptions out there so I thought I’d write a fun post and straighten some of those out.
First, how likely is it that we could end in a tie? There are actually several combinations of states that could possibly lead to a tie in the electoral college, but this year, the most likely scenario is as follows. If Obama were to win all the Kerry states from 2004, plus flip Iowa, New Mexico and Colorado, and McCain flips New Hampshire, we are deadlocked at 269 a piece. How likely is this? Well, if you take that current state polling that is exactly where this is heading. I personally still think McCain is going to hang on to Colorado, but I give Obama about a 45% chance of winning there. Now, before we dive right into what happens with a tie, lets explore a few other fun possibilities that could also shake things up. Both Nebraska and Maine have a funny system where they award electoral college votes based upon who wins the congressional district and then whoever wins the state gets the at large votes (basically the two senatorial votes). Some dreamers believe that Obama could possibly pick up the CD-1 in Nebraska which is basically the Omaha district. The only problem is that Bush won this district by about 60-40. Yes, Omaha is probably more liberal then the rest of the state, but its still pretty conservative. The other scenario is that McCain could possibly pick up the most conservative district in Maine. In fact, the most recent survey out of Maine suggests that this is entirely possible, although I do not think it is likely. Maine is a pretty liberal state, although if you know anyone from there, they do tend to have an independent streak. Under either of these scenarios, one candidate would pick up that extra electoral college vote and win the election by 1. Wow, that would be fun eh?
Okay, so what happens if there is a tie. There are a lot of misconceptions here. First, lets deal with the electoral college itself. It is important to remember that while the slate of electors from each state our bound to the candidate who won the state, in reality, they can vote for whomever they wish. So, at least conceivably, you could have a scenario where an elector from one of the states goes against the vote and “votes his conscious.” Some states actually make this illegal, but they still could not stop an elector who wanted to do this. In fact, the elector could vote for anyone they wished, even Hillary Clinton (this could possibly be important for the discussion down below). I would say this is highly unlikely to happen, but you never know, especially if you say had a Democrat elector who was a closet Hillary fan and was bitter over what happened, say from a state like Michigan, maybe they could get their last laugh by voting for McCain.
Now lets talk about some more realistic scenarios. The most common misconception here is that the House of Representatives would choose the next president. While that is kind of true, there is some more nuance to this then you might think. First of all, it is not a straight vote of all 435 members of the House. They would actually vote by state delegations. So there would be a total of 50 votes. Now, the Constitution says that the House can vote for the top 3 electoral college winners. So, as outlined above, if we had a rogue elector who decided to go for Hillary, then she would be eligible to receive votes in the House of Representatives in the event of a tie.
The Constitution also requires that the winner must receive a majority of the 50 state delegation votes, so a mere plurality will not get the job done. That means, given the Hillary scenario, you could possibly have no candidate who receives a majority vote. What happens then? Well, they have to keep voting until someone receives a majority. What happens if no president is chosen by January 20th, which is the date (per the 20th amendment) that the new president’s term begins? According to the 12th amendment the Vice-President elect would act as the president until the House can choose someone (we’ll talk more about the vice-president in a minute). While this would be the most bizarre twist, if the House was absolutely deadlocked, we could go a long time without an elected president.
Now, at least according to my count, the current House state delegation has 27 Democrat delegations, 21 Republican delegations and 2 ties. The only problem is, this Congress is not the Congress that would vote on who would break the tie. It is actually the newly elected Congress that would. It is hard to say who might benefit here. I think the consensus is that Democrats are expected to pick up more seats, however it is at least possible to pick up seats and still loose state delegations, although probably not likely. I’d guess that the numbers we see now (27/21/2) are pretty close to what we’ll see in November. But the fun does not end yet, because what would happen if a state delegation decided to vote not with their party, but with how their state voted in fear of voter reprisal for going against the popular vote of the state. For example, Mississippi, Tennessee, North Dakota, South Dakota, West Virginia, Arkansas, North Carolina, and Indiana are all expected to go for McCain, yet these 8 states have a majority of Democrat members in the House. It is not a stretch in my mind that MS, TN and WV could switch votes in the House, although once again, probably not likely. Keep in mind SD and ND are essentially 1 man delegations, so to buck the will of their state would take some bravery if they want to get re-elected. Could you imagine the shouts of selected not elected if that did happen? There would be riots in the street.
Finally, what about the Vice-President. The Vice-President would be chosen by the newly elected Senate. Here again the vote would be tight, could we possibly see a Liebermann tip the scale for Palin? Wouldn’t it be hilarious to see the House choose Obama and the Senate Palin? This, of course, could be reversed. There could be a scenario (as outlined above) where McCain won the House delegation vote, but the Democrats pick up seats in the Senate and thus vote for Biden. Since Biden has so much respect for McCAin, this would probably be a better working relationship then Obama/Palin.
So, that is your Constitutional lesson for the day, the scenarios are endless, the chaos frightening and I’d say there is a good chance that we could actually see it this time. Certainly a better chance then in any election I can remember.