What Happens If There Is An Electoral College Tie? Answer: Constitutional Chaos

An Electoral College tie?  It is not a far-fetched scenario.  If Mitt Romney wins Iowa and Nevada, where he is only narrowly behind, and sweeps the Atlantic coast states of Florida, Virgina and North Carolina, where he is even or leads, then Romney can still lose Ohio and end up in a 269-269 tie in the Electoral College.  What happens next is a story of constitutional chaos.



Electoral College 269-269 Tie Scenario

First, it is important to remember that the electoral vote totals reported on election night are not set in stone.  Each electoral vote represents an elector, a flesh and blood human being.  Earlier in 2012, each presidential candidate (or his party) filed a list of electors.  Forty-eight of the 50 states, employ a winner-take-all system for determining which electors meet in mid-December to cast a vote for President.  In Indiana, for example, if Romney wins by one popular vote, all 11 electors (a state's electors equal number of senators plus U.S. representatives), who vote for President are Romney's.
Two states, Nebraska and Maine, award an elector for each congressional districts plus two for the overall winner of the state.

Indiana is one of the 21 states in which electors are not bound to vote for the popular vote winner.
In 29 states and the District of Columbia, electors are legally bound to vote for who they originally pledged to vote. 

Alabama (Code of Ala. §17-19-2)
Alaska (Alaska Stat. §15.30.090)
California (Election Code §6906)
Colorado (CRS §1-4-304)
Connecticut (Conn. Gen. Stat. §9-176)
Delaware (15 Del C §4303)
District of Columbia (§1-1312(g))
Florida (Fla. Stat. §103.021(1))
Hawaii (HRS §14-28)
Maine (21-A MRS §805)
Maryland (Md Ann Code art 33, §8-505)
Massachusetts (MGL, ch. 53, §8)
Michigan (MCL §168.47)
Mississippi (Miss Code Ann §23-15-785)
Montana (MCA §13-25-104)
Nebraska (§32-714)
Nevada (NRS §298.050)
New Mexico (NM Stat Ann §1-15-9)
North Carolina (NC Gen Stat §163-212)
Ohio (ORC Ann §3505.40)
Oklahoma (26 Okl St §10-102)
Oregon (ORS §248.355)
South Carolina (SC Code Ann §7-19-80)
Tennessee (Tenn Code Ann §2-15-104(c))
Utah (Utah Code Ann §20A-13-304)
Vermont (17 VSA §2732)
Virginia (§24.2-203)
Washington (RCW §29.71.020)
Wisconsin (Wis Stat §7.75)
Wyoming (Wyo Stat §22-19-108)

Even as to these 29 states, many legal scholars believe that electors remain free to vote for who,ever they wish and that these laws are likely to be struck down as unconstitutional if challenged.  Previously so-called "faithless electors" have cast votes in contravention of state laws that were supposed to bind their electoral vote to the state's popular vote.  Further, the penalty for not following the law when casting an electoral vote is generally a fine in the range of a $1,000 or a misdemeanor criminal charge, not enough to deter an elector from breaking the law to decide the outcome of a presidential election.

Imagine the scenario where one Romney or Obama elector out of 538 could switch sides and throw the election to the other candidate.  An apparent tied electoral college could result in massive lobbying of electors taking place, including promises of ambassadorships and other lucrative positions in federal government.

But let's say that a vote doesn't switch and the Presidential candidates (and VP candidates) remain stuck at 269.  Under the 12th Amendment, the House of Representatives decides the election among the top 3 vote-getters in the Electoral College, with each state casting one vote. Because the Republicans have a strong majority among state delegations, the next President would be Mitt Romney.

According to the 12th Amendment, the Senate would decide the VP race among the top 2 vote-getters in the Electoral College.  If the Democrats have a majority in the U.S. Senate after the election, then you could easily end up with a Democratic Vice President Biden serving with Republican President Romney.  I don't buy that the Senate Democrats would not vote a Democratic VP to serve with a Republican President Romney.  After all, our constitutional structure does not mandate the President and Vice President work as a team and there are many examples in history where the running mates were not working partners.  The VP really has no constitutional responsibilities except serving as President of the Senate and breaking ties, which is why the Senate Democrats would want another Democrat in that role, especially since the new Senate is likely to be close.

But what if the Senate is split 50-50 after the election and the vote for VP is strictly along party lines?  With no VP selected, then a "vacancy" might give the President (with confirmation by the Senate) the opportunity to pick the Vice President under the 25th Amendment.

But here's another twist.  Electors meet in their respective state capitols on December 17, 2012.  According to federal law, the electoral vote count is announced at a joint session of the new Congress on January 6, 2013.  But the 12th Amendment says that the House shall "immediately" choose a President if there is a tie in the Electoral College.  (Ironically the word "immediately" is omitted when it comes to the Senate selecting a Vice President.)  The electoral college vote is public record and we'd know the result long before the January 6th formal opening of the ballots.  So why not let the House decide the election for President in December rather than wait until January 6th, a mere two weeks before the new President is inaugurated?

The House in fact can do exactly that ... by simply passing a law that replaces the January 6, 2013 with one in December.  That would put election of the President into the hands of the lame duck Congress as opposed to the newly-elected Congress which doesn't take office until December.  While this did not happen in the 1800 and 1824 elections when the House picked the President due to a lack of an electoral college majority, back then the President did not take office until March 4th.  With inauguration now moved up by 1 1/2 months, to January 20th, starting House deliberations on picking a President on January 6th, seems to leave far too short of a transition period for whatever President is selected by the House.

What happens if on Election Night, the electoral vote ends in a 269-269 tie?  It would be constitutional chaos.