Charlie Cook's Electoral College tie analysis

[Nym90]

 By Charlie Cook
© National Journal Group Inc.

October 4, 2008

This column was originally featured on National Journal on October 4, 2008.

What if the Electoral College ended up tied, 269-269, prolonging this Alice-in-Wonderland campaign? That's what would happen if Barack Obama won every state that went for Al Gore in 2000 plus Colorado, or if Obama carried every state that John Kerry won in 2004 plus Iowa, New Mexico, and fast-changing Nevada.

If the electoral vote is tied, the Constitution's 12th Amendment requires that the election be thrown into the newly elected House. There, each state, regardless of population, would have one vote. The votes of 26 states would be required to elect a president. Otherwise, the Senate-elected vice president would act as president until the House could agree.

We obviously don't know the makeup of the 111th Congress, but we do know that Democrats now control 27 delegations, Republicans have 21, and two are evenly divided. So I asked my colleague, David Wasserman, the House editor of The Cook Political Report, to game out what would happen if the election were thrown into the House. He concluded that it might not be easy to reach 26 votes, given that a lot of Democrats serve districts with a long history of supporting the Republican presidential nominee. Would North Dakota and South Dakota's at-large Democratic representatives -- Earl Pomeroy and Stephanie Herseth Sandlin -- vote with their electorate or their party? Although Obama is competitive in North Dakota, he is still likely to come up a bit short and has virtually no chance of winning in South Dakota. In her 2004 campaign, Herseth Sandlin indicated that she would be open to voting for the Republican nominee -- President Bush in that case -- in the event of a tie in the Electoral College.

In half of the states, control of the delegation looks firm. Fourteen seem solidly in the Democratic column in a House unit-vote election: California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. And 11 seem firmly Republican: Alabama, Georgia, Kentucky, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, Virginia, and Wyoming.

Another six states are leaning or are likely to vote Democratic (Arkansas, Colorado, Minnesota, Pennsylvania, West Virginia, and Wisconsin), bringing the Democratic count to 20. Likewise, five are leaning or are likely to go Republican (Florida, Idaho, Louisiana, Michigan, and Missouri), raising the GOP total to 16.

But 14 states are best described as toss-ups. That includes Mississippi, where Democrats enjoy a 3-1 delegation lead but two conservative Democrats would be hard-pressed to vote for Obama. In Nevada and New Mexico, very competitive House races will determine whether 2-1 GOP delegation leads will be reversed. The other toss-ups are Alaska, Arizona, Delaware, Indiana, Kansas, New Hampshire, North Carolina, North Dakota, Ohio, South Dakota, and Tennessee.

Wasserman argues that having to decide the presidential contest would put plenty of House delegations in uncomfortable positions. For example, if Democrat Ethan Berkowitz were to unseat longtime GOP Rep. Don Young in Alaska's only House seat, Berkowitz would almost certainly seal his own defeat in 2010 if he stuck with his party and voted against a GOP ticket including the state's popular governor. GOP Rep. Michael Castle, who represents Democratic vice presidential nominee Joe Biden as Delaware's only representative, would face the same choice.

And, if Democrats were to clinch a delegation majority in Arizona by protecting both of their vulnerable seats and picking off an open seat in the northern part of the state, five Democrats would have to choose between voting for Obama and voting for their state's candidate and choice for president, John McCain.

There is no way to anticipate how members would weigh considerations such as the outcome of their state's vote or the national popular vote. But for Obama, winning the support of 26 House delegations could be harder than it sounds. For one thing, four of the toss-up states in this scenario have even-numbered House delegations, meaning that intra-delegation deadlocks could reduce the number of states available to reach the magic number 26.

[○∙◄☻¥tπ[╪AV┼cVê└]

There is some chance of President Biden. However, excluding Mississippi, I don't think any of those 27 delegations will be from landslide McCain states, Delaware could be a landslide Obama state, so it'd be really sad if he voted McCain while some Democrats voted McCain.

[True Federalist (진정한 연방 주의자)]

There is some chance of President Biden. However, excluding Mississippi, I don't think any of those 27 delegations will be from landslide McCain states, Delaware could be a landslide Obama state, so it'd be really sad if he voted McCain while some Democrats voted McCain.

Infinitesimal chance of an Acting President Biden, but Zero chance of a President Biden. The Constitution and the law are reasonably clear on this point.  If the House has not been able to reach a choice by January 20, the Vice President, if one has been elected, serves as Acting President until such time as a President is later elected by the House.  That said, once Biden is chosen by the Senate to be the Vice President, that should give House Democrats wary of alienating the folks back home a second excuse (Obama almost certainly will have won the national PV in this scenario, so that will be the first excuse) to end the deadlock and vote for Obama.

[muon2]

There is some chance of President Biden. However, excluding Mississippi, I don't think any of those 27 delegations will be from landslide McCain states, Delaware could be a landslide Obama state, so it'd be really sad if he voted McCain while some Democrats voted McCain.

Infinitesimal chance of an Acting President Biden, but Zero chance of a President Biden. The Constitution and the law are reasonably clear on this point.  If the House has not been able to reach a choice by January 20, the Vice President, if one has been elected, serves as Acting President until such time as a President is later elected by the House.  That said, once Biden is chosen by the Senate to be the Vice President, that should give House Democrats wary of alienating the folks back home a second excuse (Obama almost certainly will have won the national PV in this scenario, so that will be the first excuse) to end the deadlock and vote for Obama.

What about the 12th amendment which only gives the House until March 4 to make its decision? It seems that after that date the VP would be the President.

[True Federalist (진정한 연방 주의자)]

What about the 12th amendment which only gives the House until March 4 to make its decision? It seems that after that date the VP would be the President.

The terms of the 12th here are superseded by the 20th amendment.

[Mr. Morden]

If Obama were to actually win the popular vote in this scenario, it's hard to see him not managing to get 26 House delegations right off the bat.  Winning the popular vote would probably be enough to provide political cover for those wavering House Dems in GOP-heavy districts who would of course want to vote for Obama, but are scared by the potential political backlash.

If *McCain* won the popular vote and there was an electoral college tie, however, then yeah, I could see some of those wavering Dems defecting, and it's unclear how it would turn out.

[muon2]

What about the 12th amendment which only gives the House until March 4 to make its decision? It seems that after that date the VP would be the President.

The terms of the 12th here are superseded by the 20th amendment.

Thanks, I hadn't caught that its provisions included that date repeal. What was the rationale to give the House an indefinite period to select a President?

[True Federalist (진정한 연방 주의자)]

What about the 12th amendment which only gives the House until March 4 to make its decision? It seems that after that date the VP would be the President.

The terms of the 12th here are superseded by the 20th amendment.

Thanks, I hadn't caught that its provisions included that date repeal. What was the rationale to give the House an indefinite period to select a President?

I'd guess they were clarifying and restoring the original intent of the 12th.  The 12th doesn't say that the VP-elect would become president after March 4, but that he would act as President.  Until Tyler succeeded Harrison, there was some who thought that under Article III he should remain in the office of Vice President and only exercise the Powers and Duties of the Presidency.  Tyler instead assumed the Presidency himself, tho if that interpretation were applied consistently, then under the unamended Article III, a disabled President would not be able to resume office once the disability passed, since the Office would have been filled by the former Vice-President.

As for why they didn't spell out a specific date, such as January 20 in place of the original March 4, the way the 20th was written made it quite possible, as was indeed the case, that the next inauguration would take place while only part of the 20th was law.  The clarifications and minor reforms added by Sections 3 and 4 went into force on January 23, 1933 (when the 20th Amendement was ratified), while the changes in when terms began done by Sections 1 and 2 went into force on October 15, 1933.

[Punditty]

Great stuff. Thanks for posting.

[Likely Voter]

It would be so ugly if things came down to a tie. I think if Obama ended up with a PV win, then House Dems would have some cover for voting against their states. But if he didn't...well they could end up voting for McCain.

Regardless there would be demonstrations, heavy lobbying, TV campaigns, pressure groups...it would just be a mess. That is why both campaigns are going after ME and NE single votes. Back after the GOP convention bounce the tie scenario was looking like a reasonable possibility. Now it seems pretty remote

[Verily]

A bit of a bump, but some House race analysis now that we're near election day. It currently looks as if the Democrats will increase their advantage in House delegations on Election Day. They currently have a 28-20-2 advantage (up from 26-21-3 at Election Day 2006 due to seats changing hands in IL and MS). Democrats are poised to take control of New Mexico and Alaska's delegations from the Republicans, and to bring Ohio's delegation to a tie. Arizona also looks like better than evens now to fall under Democratic control after previously being split. The Republicans, meanwhile, will be looking to bring New Hampshire to a tie while regaining Kansas from an even split. At this point, it is unlikely that any other delegations will come into play for the Republicans.

On the best result for the Democrats (which is what many are currently predicting; NH-01 and KS-02 currently look like weak Democratic holds while the other seats seem likely to flip), they have a 31-17-2 advantage in delegations. On the best Republican result, the Democrats hold 27 delegations to the Republicans' 21.

There are also some states which are competitive at the margins. The Democrats, on a very good night, could flip the Michigan, Ohio and Florida delegations and bring Idaho to a tie, while a shockingly strong Republican result Illinois, Pennsylvania and Iowa could revert to Republican control. None of these scenarios seem particularly likely, however, and the Democrats holding 28-30 delegations after Election Day seems the most likely scenario. And it's one that probably guarantees Obama the victory in the event of an EV tie.