Monday, October 1, 2012
A 269-269 Electoral Tie?!?
With September's twilight and the dawn of Fall upon us, Americans all across this nation prepare for yet another election season that is sure to bring all of the drama, suspense and intrigue of elections past. As predicted, we are beginning to see the polls tighten up in the various battleground states that are still in play. Ohio, Florida, Wisconsin and even my beloved homes state of Colorado are all still very much in the cross hairs of both President Barack Obama and challenger Mitt Romney, who are making their final pleas to those few remaining undecided voters. And since each of these states carry with them the few remaining and very precious Electoral College votes that may send their respective campaigns over the top, it is no wonder why both candidates are spending so much time and resources to win those votes. Both parties know that each and every electoral vote counts, hence the haste in trying to acquire as many as possible in order to attain the magic number of 270. The first one to the top of that mountain gets the White House!
But what happens if the election ends in an Electoral College tie? What happens if neither candidate reaches 270 but instead we have a 269-269 Electoral College tie?
Most Americans incorrectly assume that the popular vote would somehow determine the outcome, or that a second election would be held. Makes sense, right?
The reality is that a 269-269 Electoral College tie could end up causing one helluva mess.
It is the 12th Amendment to the U.S. Constitution that provides us with much of the script to this drama. But instead of regurgitating the words of this amendment (which are somewhat confusing), let us instead take a look at the 2012 election and how a 269-269 tie might play out.
If on November 6th, both Barack Obama and Mitt Romney end in an Electoral College stalemate, the first course of action will be to ensure the votes of the various state electorates. This is a bit confusing so let me explain. In the Electoral College system, each state is assigned a certain number of "electors" based on the state's population (Colorado, for example, has 9). Each elector is essentially one vote out of a total possible 538. In order to become president, a candidate must secure 270 electoral votes (the majority). In most states, the winner of the popular vote wins the state's assigned electors. So, if on November 6th Mitt Romney were to win Colorado's popular vote, he would be assigned all of Colorado's 9 Electoral College votes. Seems simple enough, right?
Not quite. The problem is that some states have laws that allow their electors to vote for whomever they choose, regardless of the popular vote. Most states have created laws that prohibit an elector from changing his//her vote from the will of the people, but not all states. In 1968, for example, one North Carolinian elector changed his vote from Richard Nixon to George Wallace, though the change had zero outcome on that election. But if an election were to end in a tie (like we are assuming here with Obama and Romney) it is at least possible that one single electorate (one person) from a state without these laws could determine the presidency. Crazy: yes. Unlikely: yes. Impossible: Nope.
With that said, it is highly doubtful that one elector would determine the outcome of the entire election. What is more likely is that the 12th Amendment would come into play. What the 12th Amendment states, in the event of an Electoral College tie, is that the new House of Representatives would convene on January 6th to cast their votes for the next President, while the Senate would determine the next vice President. Now, most political analysts believe that the Republicans will maintain control of the House in 2012, while the Democrats will maintain the Senate. For the sake of argument I am going to assume that both of these outcomes will take place on election day. In consequence, it is therefore likely for us to assume that the House of Representatives would elect Mitt Romney as the next President, while the Senate would elect Joe Biden as vice President. Simple partisan politics would determine the election, and we would be left with a Romney/Biden White House.
Except there is one small wrench in this whole equation. In a normal situation, voting in the House of Representatives is done by giving each state representative one vote. In the event of a 269-269 Electoral College tie, however, the voting is not representative-based but state-based. In other words, California (which has 55 electoral votes, meaning 53 seats in the House) would not have 53 votes for the next president but rather 1 vote. Let's put this into a practical example so it makes more sense:
If Obama and Romney end in a tie and the House ends up voting for the new president, all of California's 53 representatives would vote on who the state of California would support for President. And since most of California's representatives are Democrats, it is logical to conclude that California would go for Obama. With that said, Wyoming, which only has 1 representative in the House (a Republican), would also vote (likely Republican) and would have just as much say as California. The size and representation of a state means nothing in this process. One state: one vote.
But here's the REALLY messy part:
Let us assume that Iowa goes for Mitt Romney in the General Election. Iowa's representation in the House consists of 3 Democrats and 2 Republicans. If Iowa's representatives had to vote in this scenario, would they go with the will of their people who had elected Romney? Or would they stay loyal to their party and elect Obama, since they have the majority (3 Democrats)? This type of scenario is present in at least 6 other states.
In addition, it is important to note here that if a state has an equal number of representatives, and their voting results in a tie, that state forfeits its vote on the next president.
One more tidbit: if the vote in the House of Representatives ends in a tie (or gridlock), the 12th Amendment stipulates that the Senate would then elect an interim, two-year president from their V.P. selection. And since it is likely that the Democrats will maintain control of the Senate, we can logically say that in this scenario, Joe Biden would become the two-year interim President.
But what if the Senate vote ended in a tie? Well, as we all remember from Civics, 101, there is only one person who can cast the deciding vote in the event of a Senatorial tie: the vice President. In other words, Joe Biden himself (the current V.P.) could, theoretically, vote for himself to become the next V.P. or (if it came to that) the next (and first) interim President of the United States. That's right; Joe Biden (and an outside possibility of Paul Ryan) could, theoretically, become President of the United States if we have an Electoral College tie. Think this is all a bit crazy or that maybe I am making it up? It is ALL in the 12th Amendment, people. Read it and weep.
So how did we end up with a ridiculous system like this in the first place? We have our beloved Founding Fathers to thank for this nightmare.
In the Presidential Election of 1800, incumbent John Adams squared off against his one-time friend turned foe, Thomas Jefferson. Back then there was no such thing as a presidential "ticket," which meant that the candidate receiving the second most electoral votes became the V.P. In 1800, Thomas Jefferson was able to barely edge out John Adams by winning 73 electoral votes to Adams' 65. The problem, however, was that electors in those days had 2 votes instead of one. As a result, the 73 electors for Jefferson also casted a second vote for party ally Aaron Burr, who also received 73 votes. Originally Burr was propped up to become Jefferson's V.P. selection, and one of the electors was to withhold his vote from Burr, thereby giving Jefferson the win. This did not happen, and Jefferson was forced into an unforeseen and uncomfortable standoff with his would-be vice President, Aaron Burr.
Long story short, Jefferson's election to the presidency was eventually determined in the House but not without a long fight from Burr, who tried to take advantage of his accidental nomination. It was only after months of political negotiation that Jefferson supporters, championed by one Alexander Hamilton (who, strangely enough, disliked Jefferson but detested Burr even more), were able to garner enough votes to secure the nomination for Jefferson. And to prevent such catastrophes from happening again, our wise Founding Fathers gave is the very messed up smorgasbord that is the 12th Amendment. Hamilton and Burr went on to add further fuel to their already hot feud, which eventually culminated in their now infamous and, for Hamilton, deadly duel. Jefferson went on to comple two terms and became immortalized as one of this nation's greatest presidents and statesmen.
But none of that solves the current potential predicament that we face with each future presidential election. The looming possibility of a 269-269 Electoral College tie brings with it the horrors of what would undoubtedly be the most bitter, divisive and ugly political dialogue since the Civil War. Why we aren't proactive and choose to find a better solution is beyond me. But, as a fan of uber-ridiculous political drama, I also must concede that a 269-269 tie would make for some great must see T.V. The 12th Amendment helped to calm the political tensions of the late 18th/early 19th century. Only time will tell if it ends up creating a new mess for us in the 21st century.