In the Presidential Race, What Happens in an Electoral College Tie? | America 2020

In mid-July, with many polls showing a blowout lead for Democratic nominee Joe Biden in the presidential race, Fox News host Chris Wallace pressed his television show guest, President Donald Trump, to “give a direct answer” on whether he would accept the outcome of November’s presidential election. Trump demurred. “I have to see. Look … I have to see,” the president replied. “No, I’m not going to just say yes.”

Trump’s reply angered many critics, who called it anti-democratic, and it served to inject another layer of uncertainty into an election process that’s also been shaken by COVID-19, the administration’s attacks on the U.S. Postal Service, and persistent Russian meddling, among other issues. But there’s another, rarely discussed Election Day scenario that could potentially thrust the country into extended political turmoil: a tied Electoral College.

“I don’t think that we’re prepared for a contingent election at all,” says Robert Alexander, a professor of political science at Ohio Northern University and an expert on the Electoral College. “As tumultuous and chaotic as the last several years have been, I can only imagine that would be amplified in the weeks following a tie vote in the Electoral College.”

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Recent American history, of course, has produced two highly unusual presidential elections. In 2000, more than one month after votes had been cast, the U.S. Supreme Court ultimately halted Florida’s infamous recount effort, confirming a tiny electoral vote victory for George W. Bush.

Just four years ago, Trump lost the popular vote to former secretary of state Hillary Clinton by nearly 3 million votes, but he still won a comfortable Electoral College margin (304 to Clinton’s 227).

But the Electoral College hasn’t actually been tied since 1800, when a new party nominating system resulted in a split between then vice president Thomas Jefferson and Aaron Burr, with each man receiving 73 electoral votes. (After 36 ballots, Congress finally settled on President Jefferson, with Burr going on to serve a term as his vice president.)

This year, under one scenario modelled by the political website 270toWin, the country’s 538 electoral votes could end up evenly divided if swing states Michigan, Pennsylvania, Minnesota, Colorado, Nevada, New Hampshire and Virginia turn for Biden while Arizona, Florida, Wisconsin, North Carolina, Georgia and Ohio vote for Trump. This scenario also hinges on Biden winning four out of a possible nine combined votes from Maine and Nebraska’s unique “congressional district method,” where those two states each allocate two electoral votes to the overall state popular vote winner and one electoral vote to the winner in each congressional district. Maine, with four electoral votes, is projected for Biden; Nebraska, with five, is a safe bet for Trump.

Still, an overall 269-269 tie remains decidedly unlikely, but it is possible.

“Close elections are actually the rule when it comes to the Electoral College,” says Alexander, who points out that about half of all Electoral College decisions have been decided by 75,000 voters or fewer. “It would take things to line up in certain ways to make it happen. But they are plausible.”

Considering Biden’s overall polling lead, it’s Trump who has to make up ground to achieve the outlined tie scenario: Polls show Biden currently leading in all of the states allocated to the Democratic column, as well as with an edge in Arizona and Wisconsin, two states that Trump would need to win. But on average, Biden is only narrowly ahead in Florida and North Carolina, and the candidates are effectively even in Georgia and Ohio. With less than two months until the election, many analysts predict Trump – who won all six of those states in 2016 – is likely to pull closer.

“Given how polarized and closely balanced our country is, it only makes sense the polls would tighten somewhat,” Whit Ayres, a Republican pollster, recently told The Hill.

If the Electoral College did end up tied, the Constitution dictates that it’s the incoming Congress who breaks the stalemate, with the House of Representatives determining the president – but instead of voting as 435 individual members, each state votes as a single bloc. The Senate determines the vice president, with each senator casting one vote.

Under Congress’ current makeup, the Trump ticket would almost certainly win: Republicans control majorities in the Senate and 26 House delegations. But if Democrats took back the Senate, under the rules, they could end up determining Trump’s vice president. “It’s conceivable,” says Alexander. “It’s a weird process.”

Another possibility, Alexander points out, is that a handful or even a single member of the Electoral College becomes a “faithless elector” and votes (or attempts to vote) against his or her state’s winning candidate to avoid a draw. Such a move would almost surely prompt lawsuits and fierce condemnation. But considering the already high national temperature and looming questions of election integrity, any scenario involving a tied Electoral College, says Alexander, would likely induce a 2020 version of Florida’s not-so-distant political nightmare, marked by weeks of pitched lobbying by campaigns, threats against officials, and general national anxiety. “I think it would be a complete disaster,” Alexander says.

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