/ October 28, 2008

Worse than 2000? How About a 269-269 Electoral Tie?

As with most Presidential elections, the 2008 election has tightened up with about one day remaining. If Democratic Sen. Barack Obama fares better (but not much better) than Sen. John Kerry did in 2004, the electoral vote count could end up in a deadlocked tie 269 to 269. Our constitutionally prescribed method of dealing with ties in the Electoral College makes the famous “recount” election between then-Gov. George Bush and Sen. Albert Gore, Jr. in 2000 look like a city council election, and could even result in Alaska Gov. Sarah Palin becoming our next President.

Crazy? Yes. But also completely in line with how we elect the President.

First things first: Is it even possible that this election could result in an electoral tie? As Sarah Palin might say, “You betcha.” If the state-by-state polling 14 days out from the election is any indication, it looks like Sen. Obama will safely carry all of the states that Sen. Kerry did in 2004, with the possible exception of New Hampshire, a state that has a special political relationship with Sen. John McCain. Polls also indicate that Senator McCain will carry most of the states that President Bush carried in 2004, with the exception of New Mexico, Colorado, and Iowa, which it now seems likely that Obama will carry. This outcome is in fact an increasingly likely scenario among oddsmakers, political scientists, and computer modelers of the 2008 election. And that, my friends, gives us a 269-269 tie in the Electoral College.

Background on the Electoral College

Most people know how the Electoral College works in a normal Presidential election. Under the process established by Article II Section 1 of the U.S. Constitution, when people in each state cast their ballots on Election Day, they are not really voting for President, but for a slate of “electors” for their state, equal to the number of Representatives and Senators who represent that state in Congress – these electors are generally already nominated by the political parties in their state. In almost every state, whichever candidate wins the popular vote gets to seat its party’s electors in the Electoral College, and is entitled to all of that state’s electoral votes. (Maine and Nebraska award electors to the winners of each individual Congressional district.)

So for most elections, at some time late on election night, we know the outcomes of the votes in each state, and we know how many electoral votes each candidate will receive. On the first Monday after the second Wednesday in December (Monday, Dec. 15 in 2008), the electors chosen on election day meet in each state and cast their separate ballots for President and Vice President, generally in line with the votes in their states (although they are not bound by law to vote that way.) Their votes are delivered to the President of the United States Senate, who presides over a joint session on Congress at 1 p.m. on January 6 of the following year to open and count the ballots. Because the outcome of the election is generally known on election night, both the votes of the electors and the counting of the electoral votes are normally ceremonial exercises.

Electors Gone Wild

That’s how it normally works. But what happens when the outcome of the Electoral College vote is a tie?

The 12th Amendment to the Constitution says that in the event that no candidate receives a majority of votes in the Electoral College (a majority is currently 270 electoral votes), the U.S. House of Representatives selects the President, and the U.S. Senate selects the Vice President.

In the House’s selection of the President, the top three electoral vote-getters are eligible for election as President.[1] But the election is not a floor vote in the new House – instead, the 12th Amendment specifies that each state gets one vote, and the House members from each state would meet in a special caucus to decide which candidate gets their state’s vote.[2] The candidate who receives a majority of state votes (currently 26) becomes President. Representatives are not bound by how the residents of their state voted in the general election, and the Representatives alone will select the new President. This is not a hypothetical situation – it’s actually how we picked Thomas Jefferson President in 1800 and John Quincy Adams (left) President in 1824.

The fact that Democrats currently hold a majority of House seats is immaterial. Because each state gets a single vote, the more important question is the composition of each state’s delegation in the new Congress. To put it differently: are there more states that have a majority of Republican Representatives, or more that have a majority of Democrats representing their states? Democrats currently have a majority of Representatives in 27 states, Republicans have a majority of Representatives in 21 states.

There are three oddities to this state-by-state election in the House: First, some “crossover” states will cast their electoral votes for one candidate, but their Representatives would likely cast their state’s vote for the other. Polls in Mississippi (for example) have shown Senator McCain with double-digit leads since the start of the general election, so he would likely win Mississippi’s four electoral votes. But in the event of an electoral tie, the state has three Democratic Representatives in Congress and one Republican – Mississippi’s vote in the House election would go to Senator Obama. Based on current polling and the current composition of the House of Representatives, as many as ten or eleven states could be “crossover” states (like Mississippi), and it is not clear that those delegations would vote strictly along party lines if that means subverting the will of a majority of the state’s general election voters.

Second, the House delegations of Arizona and Kansas are equally divided between Democrats and Republican Representatives in Congress (Arizona is represented by four Democrats and four Republicans, and Kansas is represented by two Democrats and two Republicans). There is no Constitutional or statutory guidance about breaking ties in such states, and assuming that their Representatives vote along party lines, these two states would be deadlocked, and probably unable to cast a ballot in this election.

Third, because the new Congress convenes on January 3 and the joint session to count electoral votes is not until January 6, Constitutional scholars agree that it would be the incoming Congress that would vote in this election – and the state-by-state composition of each state in the new Congress is anyone’s guess.

Senate Selection of Vice President

In an electoral tie, the House’s choice for President doesn’t just get to bring their running mate along as Vice President – the Vice President is separately selected by the Senate as between the two highest vote-getters in the Electoral College. This is not a caucus by state – it’s instead “one Senator, one vote,” or a straight floor vote in the Senate.

In this election year, this might not be so simple. The composition of the Senate is 49 Democrats, 49 Republicans, and 2 independents (Sen. Bernie Sanders from Vermont and Sen. Joe Lieberman from Connecticut). Both independents typically caucus with the Democratic party, but Lieberman has endorsed McCain, which means the current Senate would deadlock as well. In tie votes in the Senate, the sitting Vice President, Dick Cheney, could vote to break the tie, and he could literally hand-pick Palin as his successor. Again, however, it is the new Senate that will vote for Vice President, and polling suggests that Democrats will win enough Senate seats to avoid such a deadlock.

President Biden? Or President Palin?

The Senate’s selection of a Vice President in the event of an electoral tie is particularly important. Under the 20th Amendment, in an electoral tie, if the House cannot muster a majority of states to vote for either candidate for President, the Vice President shall serve as President until such time as the House can select a President – and if the House never makes a choice, that could be for the entire four-year term.

Although this possibility may seem remote, the election of 1824 went to 35 separate ballots before John Quincy Adams was selected in a compromise on the 36th ballot (which prompted the drafting of the 20th Amendment).

So it would be possible for 51 Senators to elect a Vice President who would then serve as the new President – unlikely perhaps, but completely possible and completely constitutional.

In most Presidential elections, the edge provisions of the 12th and 20th Amendments do not arise. However, in the odd case of a 269-269 tie in the Electoral College, every one of these possibilities is in play. America’s closely divided electorate produced a calamitous election in 2000 – but if 2008 produces an electoral tie, this election year may make 2000 look straightforward by comparison. At least the 2000 election was decided by the nine-member Supreme Court, where the odd number of Justices doesn’t result in ties.

Ed Walters is a lawyer and serves as Chief Executive Officer of Fastcase, Inc., a legal research company based in Washington, D.C. Christina Steinbrecker, a lawyer and Customer Outreach Specialist at Fastcase, provided invaluable research assistance for this article.

[1] Presumably in a 269-269 tie, only the candidates who actually received electoral votes would be eligible, McCain and Obama in the scenario spelled out above. However, this is not explicitly enumerated in the Constitution, so it’s not inconceivable that a 2008 third-party candidate such as Rep. Robert Barr of the Libertarian Party or Ralph Nader of the Green Party would be eligible to receive votes in this House of Representatives election.

[2] Another issue unaddressed by the Constitution is whether the District of Columbia would have a vote in such an election. It is, of course, not a state – but under the 23rd Amendment, it is treated like a state in the Electoral College, with three electors who vote for President. The most literal interpretation of the Constitution would suggest that the District would not participate in this state-by-state election in the House of Representatives. However, because the 23rd Amendment says that the District’s electors shall “perform such duties as provided by the 12th article of amendment,” it is arguable that the District might also get a potential tiebreaking vote in the House election spelled out in the 12th Amendment.

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