A lesson in close elections
This year’s presidential contest could put the Constitution to the test
With mail-in, absentee, and early voting at an all-time high, Americans are getting used to the idea of not immediately knowing the winner of the Nov. 3 presidential election. But what if, once each county and state have finished their final counts, the election ends in a tie?
With 538 Electoral College votes up for grabs, President Donald Trump and Democratic challenger Joe Biden could, in theory, each get 269.
“It is mathematically and politically possible, and this is 2020, when so many unlikely things have already happened,” said Amy Black, a professor of political science at Wheaton College in Illinois.
An Electoral College tie would happen if Trump carried every state he won in 2016 except for Pennsylvania and Michigan, where Democrats have won in the past, and Biden won in the rest plus the 2nd Congressional District of Maine, which has one electoral vote.
“It’s feasible,” said professor Mark Caleb Smith, director of the Center for Political Studies at Cedarville University. “Wouldn’t call it outlandish.”
What would happen next? The 12th Amendment dictates the House of Representatives would decide the election. Though the Democrats hold a solid majority in the House, each state delegation gets one vote—not each individual representative. There, Republicans have an edge, holding a majority of seats in 26 states. It’s safe to say the tie would go to the GOP, unless Democrats could find a procedural way around it.
Knowing the newly elected House would decide the presidency in the event of an Electoral College tie, House Speaker Nancy Pelosi of California urged her fellow Democrats on Sunday to shift money to elections that could tip the state delegation count.
“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,” she wrote.
Another option: The Democratic majority could refuse to seat Republican representatives who won in November, claiming voter suppression or manipulation.
“That could flip it pretty dramatically,” Smith said.
He also noted Democrats could use the gerrymandered nature of many congressional districts to claim some states’ delegations did not fairly represent their citizens.
Black described another, more tactful option. Pelosi might be able to convince enough Republicans to vote for Biden if she gave them concessions on other policy issues. Such backdoor negotiations have precedent in U.S. history.
In 1824, Andrew Jackson held a plurality of electoral votes over John Quincy Adams and two other candidates. The election went into the House, where then–Speaker Henry Clay, one of four presidential candidates, reportedly made a deal with Adams. In what has become known as the “Corrupt Bargain,” Clay swung the House delegations’ votes to Adams, and Adams made Clay his secretary of state.
Black also noted the 12th Amendment gives the power to choose the Vice President to the Senate. If Democrats win control of the Senate, which is possible, they could try to select the No. 2 position while GOP House delegations reelect Trump.
But neither party is bound to vote for the already-nominated candidates. Through negotiations and machinations, the House could select a heretofore unknown person for the presidency, completely upending the political climate.
Those options are “all horrific in their own unique way,” Smith said.
America has been through it before. Memorialized in the musical Hamilton, the election of 1800 saw Thomas Jefferson and Aaron Burr face off for 36 congressional votes. At the time, electors cast two votes each, and the first runner-up became vice president. Jefferson and Burr tied in the Electoral College, but Burr refused to concede even though he had entered the race as Jefferson’s running mate. With the vote in the House tied, too, former Secretary of the Treasury Alexander Hamilton convinced several representatives to switch their votes. Jefferson won, and states ratified the 12th Amendment, doing away with the runner-up system, shortly afterward.
In 1876, a congressionally appointed electoral commission awarded Republican Rutherford B. Hayes the presidency over Democrat Samuel Tilden. The GOP placated Democrats, some of whom were on the cusp of civic revolt, by ending Reconstruction in the South.
Most hope such a compromise to avoid violence is unnecessary.
“I hope and pray that both Biden and Trump will definitively call for peace, calm, and patience as we await the final results,” Black said.
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