• Allon Advocacy

What Happens if the Electoral College is a Tie?

The 2020 election cycle has already been unprecedented. What happens if that continues to the extreme: an Electoral College tie?

The final set of questions in last night’s presidential debate – if you made it to the end of the 90-minute slugfest – was about the peaceful transition of power, and whether there would be one on January 20, 2020, inauguration day. The fact that this issue needed clarification at all is notable, but, as we have concluded before, it is unlikely we will know the outcome of the presidential election on Election Night, or even the day or week after. Chaos is likely. It’s 2020.

The candidates agree.

President Donald Trump last night said he could see the need for the U.S. Supreme Court to “look at the ballots” to evaluate for wide-spread mail-in voting fraud. Former Vice President Joe Biden conceded that, at the very least, it could take weeks to count the votes. Indeed, it is possible that some Americans learned for the first time last night that some states will accept ballots well into November. In Illinois, for example, ballots received up until November 17 will be counted as long as they were postmarked by Election Day. In California, ballots must be postmarked by November 3 and received by November 20.

But – and prepare to return to mid-debate anxiety levels – what if the reason we do not know a winner has nothing at all to do with U.S. Postal Service backlogs or absentee ballot volumes?

What if there is … an Electoral College tie? Unlikely? Sure. But it’s 2020.

There are 538 individuals who comprise the Electoral College. As the National Council of State Legislatures (NCSL) explains, this number reflects the total membership (435) of the U.S. House of Representatives and the U.S. Senate (100) plus three electors from the District of Columbia. Each state has a number of electoral votes that is equal to the number of representatives and senators it has in Congress.

Electors meet on December 14, in their respective states, to cast their ballots for president. (Election disputes, including recounts, are supposed to be resolved a week earlier, by December 8, to allow for the Electoral College to finalize the election the following week.)

While duty and tradition dictate that electors follow the will of the people and cast their ballots according to their respective state’s popular vote, as we’ve covered before, many states do not formally bind their electors to this norm. In fact, according to the nonpartisan Congressional Research Service, only 33 states and the District of Columbia “have laws or party regulations in place that require electors to vote for the people’s choice.”

As a result, as the elections website FiveThirtyEight explains, “it is possible that an Elector could cast his or her vote” for whomever they want. There were seven electors who switched their votes in 2016 – and five defected in favor of President Trump.

In other words: even if there is not an Electoral College tie on Election Night or in the weeks after, there could be one by mid-December.

Electors’ ballots must be received by the U.S. Senate by December 23 (though there is no penalty for missing this deadline). Then, the U.S. Congress meets for a joint session on January 6 of the new year to count the ballots.

If there is an Electoral College tie, that date is when it would be officially revealed.

And what happens in that circumstance? As FiveThirtyEight explains, “If no candidate has reached 270 electoral votes,” the U.S. House is tasked under the Constitution with breaking the tie.

But which representatives have this honor? The ones occupying office now, or those individuals on the ballot currently? As FiveThirtyEight also explains, because newly elected lawmakers will be sworn on January 3, it will be the new Congress that would take on this “responsibility.”

The outcomes of November 3 House races just became a whole lot more important, right?

Ready for another twist? Ultimately, the vote meant to break an Electoral College tie could result in … another tie.

But aren’t there 435 members of Congress? Isn’t a tie impossible?

That would be true … if each individual representative had a single vote. But they don’t.

Under the 12th amendment to the Constitution, each state delegation has one vote, which means a majority of states (26) is needed to win the presidency. Explained differently, a candidate must receive the support of a majority of a state delegation in order to earn a single vote of support in the U.S. House of Representatives. In this scenario, the presidential election would become a rough-and-tumble race to win individual state delegations over a span of just a few short days.

Sound far-fetched? Maybe. But it’s starting to become more a focus in D.C. According to Politico, House Speaker Nancy Pelosi (D-Calif.) “sent an email to her House colleagues Sunday afternoon [September 27] urging Democrats to focus on flipping House state delegations.”

Speaker Pelosi said, “[H]ow many state delegations the Democrats win in this upcoming election could determine who our next President is. … We must achieve that majority of delegations or keep the Republicans from doing so. Because we cannot leave anything to chance, House Majority PAC is doing everything it can to win more delegations for Democrats. It’s sad we have to have to plan this way, but it’s what we must do to ensure the election is not stolen.” Apparently, the Speaker also has “raised the issue repeatedly in recent weeks with her leadership team.”

Republicans, of course, also have noticed this rule. According to Politico, President Trump discussed it at a campaign rally the day before Speaker Pelosi sent her email.

While Democrats currently have a majority in the U.S. House – there are 232 Democrats and 198 Republicans (with one Libertarian and four vacancies) – they do not have majorities in a majority of state delegations. According to FiveThirtyEight, Republicans hold the majority of seats in 26 states while Democrats have the advantage in 23. Pennsylvania’s delegation is evenly split.

Notably, the GOP’s advantage in state delegation majorities is down from 32-17 before the 2018 elections – and the margin could become even narrower again this November.

FiveThirtyEight has an interactive tool that allows users to examine the makeup of each state delegation currently and the likely House election outcomes in each state. And, according to Politico, “An informal whip count has already begun” by House leaders to determine how election outcomes could impact a tie-breaking vote. For example, we know “Democrats hold a one- or two-vote seat edge in seven states that are expected to feature at least one sharply contested House race: Arizona, Iowa, Maine, Michigan, Minnesota, Nevada and New Hampshire.” Additionally, “Republicans hold a similarly tenuous edge in Florida” and “he Alaska and Montana at-large seats are held by Republicans, meaning a Democrat would change the delegation’s vote in a presidential tally.”

As a result, Politico warns, “In some states, a single seat could decide the partisan makeup of a delegation.” And, by extension, the next President of the United States.

What that means for this already contentious election is that “there could be extended legal challenges over declaring victors in House races, as national party leaders and their legal teams dive headlong into the results for individual races at the county or even precinct level.” Politico also noted, “If Democrats retain control of the House, they could opt against seating potential members whose elections remain contested, even if state officials say otherwise.” The Capitol Hill newspaper concluded, “If the House is asked to resolve an Electoral College stalemate, the country will be witnessing one of the harshest exercises of raw power in its history.”

How true – because that is not all.

When the results are read aloud on January 6 in Congress, according to the Congressional Research Service:

“Members may object to the returns from any individual state as they are announced. Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded.”

If this process sounds time-consuming, it is because it is.

And it would be even more so if there is a 25-25 tie in the state delegation vote. Because, as FiveThirtyEight notes, “if a majority is not reached in the House vote … that chamber needs to keep at it until the tie is broken,” in a very papal conclave-esque process.

What happens if the deadlock is still in place on inauguration day? Well, then, “the vice president becomes acting president until such time as the House elects a president.”

And how is the vice president determined if there is an Electoral College tie?

In the Senate, where each senator of the next Congress would have a single vote for vice president.

And what if there is a tie in that tally? Who would break it?

The sitting vice president, of course, who breaks all ties in the Senate. Mike Pence.

According to Senate historians, the Senate has exercised this power only once, in 1836. The last time the U.S. House decided the result of a presidential election was 1876, in the race between Rutherford B. Hayes and Samuel J. Tilden.

So while the chances of a House standoff are rare, it is 2020. Prepare for anything.

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