What If There's a Tie?

In 1992, Ross Perot ignited a brief populist fervor with his creation of the Reform Party (now all but defunct) and his own independent campaign for the presidency. Although most pundits did not give him a chance of winning, there was speculation early in the race that he might be the front-runner in a few states, taking some of the electoral college votes. If he were to siphon off enough Electoral College votes, he theoretically could have denied either George H. W. Bush or Bill Clinton from receiving a majority of the Electoral College votes. That would have created what's called a "brokered election." The twelfth amendment to the Constitution, which was ratified in 1804, specifies how Congress will resolve such a problem.

It didn't happen in 1992. Perot didn't carry a single state, and Clinton won a decisive majority of the Electoral College votes, 370 to 168. The last independent or third-party candidate to receive any Electoral Votes was George Wallace, who took 46 Electoral Votes - but Nixon won 301 votes, almost 56% of the Electoral Votes, even though he beat Hubert Humphrey for the popular vote by less than one percent.

(The last time an independent party candidate outpolled a candidate from one of the two major parties was in 1912, when former President Theodore Roosevelt opposed the re-nomination of incumbent President William Taft. When the Republican Party re-nominated Taft, Roosevelt split with the party to create the progressive Bull Moose Party. This split the ranks of the Republican Party, allowing Woodrow Wilson to capture 435 Electoral College votes. But Roosevelt took 88 of them, while the incumbent president only received eight.)

Could this be the year? What could cause a brokered election in 2004, and what would happen if it did?

Causes and Chances

Although liberal maverick Ralph Nader and Libertarian candidate Michael Badnarik are consider potential spoilers for John Kerry and George Bush, respectively, no one expects that either has a remote chance of capturing even a single Electoral Vote. Bush and Kerry will collectively take the entire Electoral College.

The Electoral College consists of 538 electors (the size is determined by the size of each state's collective congressional delegation, plus three electors to represent Washington, DC). The winner must take a majority of the Electoral Votes - 50% plus one, or 270 votes. But because the Electoral College has an even number of electors, it is theoretically possible for each to get 269 votes - exactly 50 percent each. And that tie would create a brokered election.

Could it happen? Let's be clear, the odds of this happening is extraordinarily unlikely. But my own calculations, drawing off of Rasmussen polling, shows how this tie is already shaping up.

According to Rasmussen's state-by-state polling, George Bush currently has a "safe" lead in states totally 213 Electoral College votes. Kerry leads safely in states totaling 194 votes, leaving 131 Electoral Votes in toss-up states. Of those 131 remaining votes, Bush has a slight lead in four states totaling 61 votes. Kerry leads in four totaling 55 votes. Another two states totaling 15 votes are exactly tied. Assuming these two go to Kerry (since undecided votes are predicted to go for Kerry by a 2 to 1 margin) but Bush retains hold on the states where he currently leads, Bush would win with 274 votes to Kerry's 264.

No brokered election. But one of the states where Bush is narrowly ahead is Nevada, where by late September (before the debates) he led by only two percent. Assuming everything else stays the same except for Nevada, Kerry will take the state's five votes and Bush will lose them, putting them both at a tied 269 votes.

Note: I don't really expect that will happen. The odds of an exact tie is extremely small. The figures above are interesting to examine, but I believe they unfairly skew to Bush. Rasmussen's polling methodology isn't the greatest, which I will explain in a future article, and tends to artificially tilt Republican. Rasmussen currently shows Bush with a narrow lead in Ohio, which I honestly think will go to Kerry on November 2. In addition, this assessment doesn't factor in the uncounted Kerry supporters that I explained in an earlier article, which I think will allow Kerry to pick up some additional very close states. Still, these figures allow us to explore an interesting exercise.

A Bush/Edwards Administration?

Many armchair pundits have already been discussing the possibility of a Bush/Edwards Administration. What??? Yes, it's theoretically possible, but highly unlikely. In the event of an Electoral College tie, the newly-elected House of Representatives will choose the next President while the new U.S. Senate will choose the next Vice President. If the House remains controlled by Republicans (which it probably will) but the Democrats win a slim majority in the Senate (which is still possible), the House could choose to make Bush president while the Senate could elect John Edwards as the new vice president.

Pundits are simplifying this mostly academic exercise by simply saying that the House chooses the president, the House is currently dominated by Republicans, and is likely to stay that way, so the House will pick Bush. But actually, the process by which the House chooses a president is much more complicated than the process in which the Senate chooses a Vice President.

How the Senate Chooses a Vice President

The 12th Amendment's specifications for choosing a new Vice President are clear and rather straightforward:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

In other words, the Senate would have to choose among either Dick Cheney or John Edwards, the top two vote-getters. At least 66 Senators would have to be present for the vote to be taken (so a minority of 34 Senators could try a sort of filibuster to stop the vote). A majority of the entire Senate (not just those who show up or vote) is required to elect the new VP, so 51 Senators would be needed (or presumably 50 Senators, with the incumbent Vice President, Dick Cheney, breaking the tie).

If the Democrats pick up enough open and vulnerable seats, not outside the realm of possibility, they would likely choose John Edwards as the next Vice President.

How the House Chooses a President

The House is currently dominated by Republicans (229 to 207, if you count independent Bernie Sanders of Vermont as a Democrat). Most pundits predict that all seats currently held by Republicans, even ones where the incumbent is retiring, will remain in Republican hands, and likewise, most Democratically-controlled seats will continue to be held by a Democrat. Most states have redrawn district lines to favor the incumbent member's party, and analysts don't expect any real changes.

Representative Nancy Pelosi (D-San Francisco, CA) is campaigning hard for fellow Democrats in swing districts and thinks that the Dems have a chance of picking up some seats. And it's conceivable that if the increased voter registration does well for Kerry, and his coattails helps the rest of the ticket, some seemingly "safe" Republican seats might not be so safe after all. But a change large enough to switch control? Democrats would need to take 12 seats to do that. I was surprised in 1994 when the Republicans took control of the House; I would be surprised again - but much more delighted - if the tables were turned after a decade of misrule.

But the 12th Amendment's instructions for the House to select a President are very different than the instructions for choosing a Vice President.

[I]f no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

In this unusual circumstance, voting is done by state delegations rather than by individuals. And quorum is met when at least 34 states have one or more representatives present. Since 43 states currently have one or more Republican members in the House, and 44 states have one or more Democrats, whichever party feels they have the votes necessary to elect a president will make sure that they have enough representation present to achieve quorum. No chance of a sort of filibuster.

In addition, each state gets a single vote. The state delegation will vote amongst themselves and choose by majority vote whether to cast their vote for Bush, Kerry, or whichever third-party candidate came in third (likely Michael Badnarik, but possibly Ralph Nader, though it makes little difference). Though Florida currently have 18 Republicans and only 7 Democrats in the House, their delegation could cast only a single vote for Bush - the same number of votes that Vermont's lone member, an independent who votes with the Democrats, could cast for Kerry.

The problem for the Democrats is that Republicans currently control an even higher percentage of state delegations. Only 52.5% of Representatives are Republicans, but 30 states, 58.8% of the delegations, have a Republican majority. (It's unclear to me if Washington, DC's representative would get to vote, but I think she would. I don't believe the shadow representatives from U.S. territories get to vote on these matters, though.) Another four states have exact ties - their vote would be lost if the delegation cannot come to a decision, and it would be irrelevant if one party could muster a majority without them. (One of those four states is Bush's home state of Texas, where there would likely be considerable hometown pressure to get at least one Democrat to jump the fence and vote for Bush.)

In order to control a majority of the state delegations, Democrats would have to win a minimum of nine seats - and they need to come from any combination of the four tied states (Minnesota, Mississippi, Texas, and Wisconsin) plus the 11 states where Republicans outnumber Democrats by only one Representative (Alaska, Connecticut, Delaware, Illinois, Missouri, Montana, Nevada, New Mexico, North Carolina, Utah, and Wyoming). In theory, Democrats could fall short of winning an outright majority in House but still have control over enough state delegations to be able to choose the next president.

Theory versus Reality

Of course, on paper this seems all very plain and simple. But reality would likely prove to be very different. Many states - like Arkansas, North Dakota, and South Dakota - have a majority of Democrats in their delegations (in some states, a delegation of one), but their states are predicted to vote heavily for Bush. Many of these representatives may find themselves under considerable pressure to vote for the candidate their state supported rather than the one their party supports.

This also assumes that a tie would ever end up being decided by Congress. Although electors are pledged to their party's candidate, the Constitution doesn't actually require them to vote that way. Some states have laws against electors voting against their pledge, but it's unclear whether these laws are even constitutional. In 1976, for example, a lone elector cast a vote for Ronald Reagan even though Gerald Ford was the party's official candidate. An elector of conscience might decide that their state's penalty was worth suffering in order to do what he or she felt was the right cause of action for the nation (though such an act could, in theory, provoke an even greater constitutional crisis than an election decided by Congress).

This, of course, is purely academic anyway. The odds of this race ending up being decided by Congress are very, very slim indeed. But then, who would have predicted that the 2000 election would have been decided by a one-vote majority of the U.S. Supreme Court?

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