If there was a 269-269 tie and the vote went to the house... (user search)
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  If there was a 269-269 tie and the vote went to the house... (search mode)
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Author Topic: If there was a 269-269 tie and the vote went to the house...  (Read 3817 times)
brucejoel99
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Posts: 19,720
Ukraine


Political Matrix
E: -3.48, S: -3.30

« 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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brucejoel99
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Posts: 19,720
Ukraine


Political Matrix
E: -3.48, S: -3.30

« Reply #1 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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brucejoel99
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*****
Posts: 19,720
Ukraine


Political Matrix
E: -3.48, S: -3.30

« Reply #2 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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