If there was a 269-269 tie and the vote went to the house...
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  If there was a 269-269 tie and the vote went to the house...
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Author Topic: If there was a 269-269 tie and the vote went to the house...  (Read 3706 times)
icemanj
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« on: March 10, 2019, 06:52:17 AM »

If there was a 269-269 tie, which has a very real possibility (2016 + MI + PA + ME-02) and the vote went to the house, I would assume each member would vote along party lines. I was curious so I made a map based on the current congressional delegations of each state. That results in this map -
https://www.270towin.com/maps/yJGV2

Democrats would pick up Iowa and Arizona, but MI and PA have even split delegations. What would happen here? would 1 republican defect and vote for the democrat because the democrat won their state? What if they refused to break a tie? What's the process? And by the way, how are DC's electoral votes decided in this case?
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SteveRogers
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« Reply #1 on: March 14, 2019, 10:36:06 AM »

In that scenario, the states with split delegations would be unable to cast a vote until someone decided to cross party lines. A candidate would need the votes of 26 states to win, so if those states were decisive, balloting would continue until the deadlock could be broken. If the deadlock persisted until January 20th, then the Vice President elect would assume the duties of acting president until the house deadlock could be broken.

If the election is thrown to the House, D.C. gets no say in choosing the president.
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The Mikado
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« Reply #2 on: March 14, 2019, 11:46:25 AM »

I think if there's a 269-269 EV result, you'll have at least one elector go rogue and vote for some random because of the "House can choose between the top three candidates" rule. Maybe a group of electors will force Kasich into consideration and confuse the House vote.
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The Mikado
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« Reply #3 on: March 14, 2019, 04:59:54 PM »

If that was the case for 2020 a Democrat would become president and a Republican would become vice president.

Not necessarily. Remember that the next Congress, not this one, will make the decision. GOP could make gains in the House or, less likely, Dems could retake the Senate.

If we did have this particular scenario, with a completely unchanged Congress as laid out in the map the OP made, the GOP wins the House vote 26 delegations to 22, with 2 not voting, so GOP carries the Presidency. Dem gains could push the House to no overall majority, but probably not enough to push the House to a Democratic win.

The tricky thing about the Senate is that it's not clear whether the Vice President can break a tie in a vote on who wins the Vice Presidency, so if the Senate ends up 50-50, we might well end up with a vacant VP slot for months (years?) until the tie breaks.
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icemanj
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« Reply #4 on: March 14, 2019, 07:38:04 PM »

I didn't realize it goes by just number of states instead of EV numbers.
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The Mikado
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« Reply #5 on: March 14, 2019, 08:50:54 PM »

I didn't realize it goes by just number of states instead of EV numbers.

Yeah, it's just number of state delegations. We've only done this nonsense twice, though, in 1800 and 1824, so there's not a lot of useful precedent.
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morgankingsley
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« Reply #6 on: March 14, 2019, 10:02:01 PM »

This will never happen. Ever
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Del Tachi
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« Reply #7 on: April 09, 2019, 11:25:53 AM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.
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LabourJersey
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« Reply #8 on: April 09, 2019, 12:10:17 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

You really think so? These electors are picked by their party.

I'm struggling to imagine a GOP elector choosing to vote for the Democratic nominee if the Dems were to win the popular vote. And imagining a Democratic elector voting for Trump is almost impossible.
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Comrade Funk
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« Reply #9 on: April 09, 2019, 12:18:23 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

You really think so? These electors are picked by their party.

I'm struggling to imagine a GOP elector choosing to vote for the Democratic nominee if the Dems were to win the popular vote. And imagining a Democratic elector voting for Trump is almost impossible.
Fitzpatrick in PA maybe. If the Dem is moderate enough.
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LabourJersey
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« Reply #10 on: April 09, 2019, 01:45:41 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

You really think so? These electors are picked by their party.

I'm struggling to imagine a GOP elector choosing to vote for the Democratic nominee if the Dems were to win the popular vote. And imagining a Democratic elector voting for Trump is almost impossible.
Fitzpatrick in PA maybe. If the Dem is moderate enough.

I meant this in reference to the actual presidential electors, not House members. Though house members in this situation may be a little more pliable
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Adam Griffin
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« Reply #11 on: April 09, 2019, 03:49:33 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

You really think so? These electors are picked by their party.

I'm struggling to imagine a GOP elector choosing to vote for the Democratic nominee if the Dems were to win the popular vote. And imagining a Democratic elector voting for Trump is almost impossible.

Clinton lost 5 electors (232 -> 227) and Trump lost 2 (306 -> 304) by the time the EC convened and actually voted - and that wasn't even a situation where a constitutional crisis could unfold. Of course, none of these 7 actually voted for the other major party nominee.

I think the only question in a 269-269 scenario would be whether the defections would benefit either candidate in net terms.
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LabourJersey
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« Reply #12 on: April 10, 2019, 07:31:10 AM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

You really think so? These electors are picked by their party.

I'm struggling to imagine a GOP elector choosing to vote for the Democratic nominee if the Dems were to win the popular vote. And imagining a Democratic elector voting for Trump is almost impossible.

Clinton lost 5 electors (232 -> 227) and Trump lost 2 (306 -> 304) by the time the EC convened and actually voted - and that wasn't even a situation where a constitutional crisis could unfold. Of course, none of these 7 actually voted for the other major party nominee.

I think the only question in a 269-269 scenario would be whether the defections would benefit either candidate in net terms.

But those faithless electors voted for other candidates. The scenario posed here is an elector voting for the popular vote winner. A Republican elector could potentially vote for a random candidate, but they are not going to cast a ballot for the Democratic nominee (and all the villification from the right that would ensue)
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The Mikado
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« Reply #13 on: April 10, 2019, 10:10:55 AM »

Also, a bunch of electors voting for third people doesn't clear up who wins, it just potentially alters who the third option the House can choose from is.
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BigVic
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« Reply #14 on: April 12, 2019, 07:12:44 PM »

It will be the same process as a deadlocked electoral college with 3rd party candidate
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Del Tachi
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« Reply #15 on: April 13, 2019, 12:54:33 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

They would need to be put in the witness protection program if they did that

The electoral college votes anonymously.  A California or Texas elector could defect quite easily and have no realistic chance of being "outed" unless they wanted to be.
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brucejoel99
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« Reply #16 on: April 13, 2019, 05:31:04 PM »

In a 269-269 electoral tie, one elector would defect to the national popular vote winner to give him/her a majority when the electoral college convenes.

They would need to be put in the witness protection program if they did that

The electoral college votes anonymously.  A California or Texas elector could defect quite easily and have no realistic chance of being "outed" unless they wanted to be.

Actually, some states (such as Minnesota) provide for public balloting of the electors' votes, whereas others allow for their electors' specific votes to be kept secret.
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The Mikado
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« Reply #17 on: April 17, 2019, 11:50:48 PM »

I think it's safe to assume, given that the electors are all partisans and usually old hands, that none of them would vote for the opposing nominee. Nevertheless, in the 269-269 scenario, if we don't get that, we might still get the "get a bunch of votes together for potential third option for the House" approach. I don't think Congress is likely to consider a third candidate even if they are hopelessly deadlocked (most of them are from landslide districts for either Trump or the Dem nominee and their constituents would be miffed if they voted for, say, John Kasich rather than either of them), but someone would at least try it.

Not only would they try it, there's pretty good odds it would literally be Kasich. Again, I don't know if anyone in Congress would be inclined to pick Kasich over Trump or the Democrat, but they'd probably get the option.
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Izzyeviel
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« Reply #18 on: April 18, 2019, 04:44:06 PM »

A better question is what would happen if it were a tie, but an elector went rogue and voted against the wishes of his state to make it 270-268?

How could this be challenged?
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brucejoel99
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« Reply #19 on: April 20, 2019, 06:45:12 PM »

A better question is what would happen if it were a tie, but an elector went rogue and voted against the wishes of his state to make it 270-268?

How could this be challenged?

It really couldn't.

21 states don't even have laws compelling their electors to vote for a pledged candidate, so if the hypothetical scenario you've presented were to entail an elector from one such state, then their vote would be valid, & whomever they were the 270th electoral vote for would be President-elect.

Now, some of the other 29 states plus D.C. do have laws to penalize faithless electors, although these have never been enforced (& in lieu of penalizing a faithless elector, some states, such as Michigan & Minnesota (the latter of which invoked this law for the first time in 2016 when an elector pledged to Clinton attempted to vote for Bernie Sanders instead), specify that the faithless elector's vote is void & that a replacement elector will vote for the candidate whom the electors' party supports).

And while the Supreme Court has confirmed the constitutionality of state pledge laws (ruling that states have the right to require electors to pledge to vote for the candidate whom their party supports, & the right to remove potential electors who refuse to pledge prior to the election), the ruling only held that requiring a pledge, not a vote, was constitutional, & even went so far as to state that such promises of candidates for the Electoral College are legally unenforceable b/c they're violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he [or she] may choose in the Electoral College.

Crucially, what this means is that, while the Court has never ruled on the constitutionality of state laws explicitly punishing or replacing electors for actually casting a faithless vote, or refusing to count said votes, it is generally believed that a state law that would thwart a federal elector's discretion at an extraordinary time when it reasonably must be exercised (such as a tied election, perhaps) would clearly violate Article II, as well as the 12th Amendment.

So, if the election were to be tied after Election Day, but then an elector voted for the other party's candidate rather than the candidate for whom they had pledged to vote, thus making it 270-268 & ensuring that the other party's candidate will be President, it really couldn't be challenged (successfully, anyway), due to the fact that it is implicit under the Constitution that electors are technically free agents who are free to exercise an independent & nonpartisan judgment as to the candidates best qualified for the nation's highest office.
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emailking
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« Reply #20 on: July 31, 2019, 12:40:21 PM »

Now, some of the other 29 states plus D.C. do have laws to penalize faithless electors, although these have never been enforced (& in lieu of penalizing a faithless elector, some states, such as Michigan & Minnesota (the latter of which invoked this law for the first time in 2016 when an elector pledged to Clinton attempted to vote for Bernie Sanders instead), specify that the faithless elector's vote is void & that a replacement elector will vote for the candidate whom the electors' party supports).

They should have filed lawsuits about this. If for no other reason than to get this cleared up by the courts. I agree it is probably unconstitutional to replace them after they have attempted to vote.
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brucejoel99
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« Reply #21 on: August 01, 2019, 12:49:31 PM »

Now, some of the other 29 states plus D.C. do have laws to penalize faithless electors, although these have never been enforced (& in lieu of penalizing a faithless elector, some states, such as Michigan & Minnesota (the latter of which invoked this law for the first time in 2016 when an elector pledged to Clinton attempted to vote for Bernie Sanders instead), specify that the faithless elector's vote is void & that a replacement elector will vote for the candidate whom the electors' party supports).

They should have filed lawsuits about this. If for no other reason than to get this cleared up by the courts. I agree it is probably unconstitutional to replace them after they have attempted to vote.

They did. Legally speaking, federal judges declined to issue injunctions blocking faithless elector laws as there was insufficient time to appeal to the Supreme Court before the electoral college vote; practically speaking, it didn't really matter as Trump had obviously won by a large enough margin that faithless electors weren't gonna even come close to affecting the outcome of the vote. Interestingly enough, though, in Baca v. Hickenlooper, a 3-judge panel of the Tenth Circuit did declare (albeit in a footnote) that any attempt to remove electors "after voting has begun" would be "unlikely in light of the text of the Twelfth Amendment."
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jimrtex
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« Reply #22 on: August 02, 2019, 02:49:34 PM »

Now, some of the other 29 states plus D.C. do have laws to penalize faithless electors, although these have never been enforced (& in lieu of penalizing a faithless elector, some states, such as Michigan & Minnesota (the latter of which invoked this law for the first time in 2016 when an elector pledged to Clinton attempted to vote for Bernie Sanders instead), specify that the faithless elector's vote is void & that a replacement elector will vote for the candidate whom the electors' party supports).

They should have filed lawsuits about this. If for no other reason than to get this cleared up by the courts. I agree it is probably unconstitutional to replace them after they have attempted to vote.

They have filed lawsuits.

In 2004, a Minnesota elector voted for John Ewards (sic) for President. This was discovered when the SOS opened the ballot box and counted the votes.

As a result, a bunch of lawyers, some from the firm of Rube Goldberg & Associates devised a scheme that could cover every contingency.

Every elector has an alternate. If there is no alternate, then the other electors vote on one of the alternates. If there is a tie vote, one is chosen by lot. If there are no alternates left, then the other electors may choose one. If there are no electors left, the SOS appoints one.

The basic concept is: the oath of office includes a pledge to vote for the winner of the popular vote. If they refuse to take the oath, they have vacated the office. After they fill in the sheet of paper, and it is found they wrote another name on it, it is not considered to be a "vote". Only after the SOS has examined it is it considered to be a vote.

The original certificate of ascertainment said that it was subject to change. The official certificate of ascertainment removes any mention of the original elector.
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Skill and Chance
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« Reply #23 on: August 02, 2019, 05:01:31 PM »

Moot point because there is no way in heck John Roberts is allowing a presidential election to be decided by a faithless elector. 
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True Federalist (진정한 연방 주의자)
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« Reply #24 on: August 19, 2019, 06:03:11 AM »

Rather than an actual tie, the most probable way for an election to go to the House or Senate would be faithless electors as happened in 1836 for the Vice Presidency.

Since the GOP has, and is likely to retain a majority in both House State delegations and Senators, we're most likely to see unfaithful Republican electors trying to offer a Republican alternative to Trump.
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