2008 Electoral College tie would likely yield Democratic President

The US Constitution requires that the President and Vice President be elected by a majority vote of the Electoral College. Because the Electoral College has 538 members, a majority would equal 270. However, it is possible to have a 269-269 tie. Here are some ways in which a tie in the Electoral College could happen - and how it would be broken.

How a tie could happen
The states Kerry won in 2004 account for 252 electoral votes. We need 18 more votes to win outright, 17 more to tie. Here are just a few ways in which a tie mighty happen.

1. We win all of the states Kerry win, plus Iowa (7 electoral votes) - which Bush won by just a few thousand votes - and either Arizona (10) or both Nevada (5) and New Mexico (5).
2. We lose Wisconsin (10) but win in either Florida (27) or both Ohio (20) and Iowa.
3. We win Colorado (9), New Mexico, and Iowa, but lose New Hampshire.
4. We lose Pennsylvania (21) but win Florida and Missouri (11).
5. We lose Michigan (17) but win Florida and Iowa.
6. We lose Michigan but win Ohio, New Mexico, and Colorado.
7. We lose Michigan, New Hampshire, and Pennsylvania but win Florida, Iowa, Ohio, and either New Mexico or Nevada.

Casting and counting the electoral votes
So as you can see, there are a number of ways in which the two tickets can deadlock at 269 EVs apiece, many of which I haven't even mentioned. So what happens then? Some of you know exactly how the process works, but for those who don't, here's a synopsis.

1. November 4, 2008: When voters vote in presidential elections, they are actually voting for a slate of electors (usually nominated by state parties) who are pledged to vote for a specific Pres/VP ticket.

2. December 15, 2008: Those electors will gather in their state capitals to officially vote for the new President and VP on the Monday following the second Wednesday in December. In some states (but not all), it is entirely possible that one elector will vote for the candidates opposite the ones for whom they were pledged to vote, and thus break the tie.

3. January 6, 2009, or thereabouts: Shortly after the 111th Congress convenes, Congress will meet in joint session to officially count the electoral votes. If a candidate receives at least 270 electoral votes, they are elected.

4. If no candidate receives 270, however, Congress settles the matter. Amendment XII tells us how that would work.

...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. ...

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; ... and a majority of the whole number shall be necessary to a choice.
In other words, each state's House delegation gets one vote to determine who will become the next President of the United States, while each Senator votes for the next Vice President. This means that one can assume that a state's vote for President will go to the candidate whose party has the majority of Congress(wo)men from that state, while each Senator will vote alonmg party lines.

What this means for 2008/2009
So had the Electoral College deadlocked at 269 apiece in the 2004 election, Bush would still have been declared the winner, receiving the votes of 28 states to Kerry's 19 (assuming Vermont's lone rep, then Independent Bernie Sanders, would've voted for Kerry). However, thanks to the gains Democrats made in 2006, we now hold a 26-21 lead in delegations, with Arizona, Kansas, and Mississippi tied. (Don't ask me how those three states would vote.)

What this tells us is that providing the Democrats do not lose any seats in the House - or that any seats they do lose are in states where it wouldn't cost them the majority in any state's delegation - then we can likely expect a Democratic President in 85 weeks.

Many expect the Democrats to expand their lead in the Senate, winning at least the seat in Colorado, if not New Hampshire, Virginia, or elsewhere. Let's hope this happens, but if there's anything 2005 and 2006 taught us, it's that things can change quite a lot in a short time. (A one-seat majority is not much of a majority!)

Now imagine split control of Congress. Say the Democrats control a majority of delegations in the 111th House, while the GOP wins back the Senate. If they vote on party lines, this would result in a bipartisan split - a Democratic President and a Repub VP - the first time since 1801 that the two have been of opposite parties.

Then there are so many other intriguing possibilities. Ordinarily, a majority in the Senate equals 51 votes, but right now there are only 99 Senators because of the passing of Senator Thomas, so 50 is a majority. In Maine and Nebraska, the winner in each Congressional district gets one vote and the winner of the state as a whole gets two. Then there's the issue of faithless electors - which I barely touched on here.

Confused? I don't blame you. If I had my way, the Electoral College wouldn't exist. But since it doesn't appear to be going away anytime soon, I hope this gives you a better sense of what would happen in the event of a tied Electoral Vote.

Of course, I also hope that a landslide Democratic win will allow us not to have to worry about that.


mike wendling said...

But would the House that votes be the existing House, or the newly elected House - is that clear?

Scott said...

The newly elected House would vote.

Matthew said...

Hoefully California can pass the law to have all their electoral votes go to the winner of the popular vote -- that will be the beginning of the end of the electoral college.

Anonymous said...

Sorry to be pedantic, but back in 1865 there was briefly a GOP president - Abraham Lincoln - and a Democratic vice president - Andrew Johnson - before Lincoln was assassinated and Johnson took over.

Anonymous said...

If we got rid of the electoral college and only the popular vote was counted...then you just have to win CA, TX, NY, IL, FL... there, done deal. Not fair to the smaller states. Anyway, let's face it...these last elections are razor thin becuase it's the large cities VS. the rest of the country. Could very well be a tie this time.

The Nashif Report said...

I went to an interactive electoral map and changed it according to the current state polls, I came up with Colorado as the remaining state to decide the election, Obama 260 McCain 269, Colarado is 9 which means if it goes democrat Obama ties, however, the state is much to close to call. But right now is leaning Dem by less than 1 percent.

However, I am not an obama supporter by a longshot, and cringe at the idea of a tie. Because if it is a tie, the left wing nuts in congress will elect the next president....

by the way I like your Blog, intelligent, and not filled with hate. Your article is spot on. Keep up the good work.

klatuberatanikto said...

One interesting question: would a Representative vote with their party or with their district?
For example, Alaska may have a Democrat Representative for the 111th Congress. Would he buck his state's vote and support Obama?
Also condider Mike Castle (R) in Delaware if he wins re-election.

By the way, what happens to the vote of a delegation if they are evenly divided and no one budges? Some states with an even number of representatives in their delegation may be split 50/50 on party lines. Does the delegation lose its vote if they can't reach a consensus?

This reminds me of the quandary faced here in Atlanta by John Lewis (D)(GA-05) when he continued to support Hillary after Super Tuesday, although his district went overwhelmingly for Obama. He eventually changed his support, but only after a general outcry and 2 challengers registered for the district primary.

If there's an electoral tie, I'm not sure I trust representatives of either party to work straight and honest. However, since the Democrat party will probably gain seats, I don't see that there will be a problem.

Scott said...

klatuberatanikto, the only answer I can give is that the members of Congress are free to vote as they wish. Odds are, Berkowitz would vote for Obama and Castle for McCain, but that's just my guess.

Anonymous said...

Anonymous said...

If we got rid of the electoral college and only the popular vote was counted...then you just have to win CA, TX, NY, IL, FL... there, done deal. Not fair to the smaller states. Anyway, let's face it...these last elections are razor thin becuase it's the large cities VS. the rest of the country. Could very well be a tie this time.

That's the worst logic. That would only work if 100 percent of those five states votes for the same candidate.

Anonymous said...

The new Congress would elect the new president. My guess is that there would be no prez elected, since 26 states, not a majority, would be necessary. Even if the Dems control a majority of state delegations, there would be pressure on, say, the delegations (or lone reps) of states supporting McCain to have their Democratic reps vote accordingly. This could include MT, SD, ND, and Indiana-- possibly others.

Al in very blue Massachusetts said...

There are two ways to get rid of the electorial college - either by Constitutional amendment, or more likely, by a consortium of states that together represent more than a majority of electors agreeing to cast all of their electoral ballots for the winner of the popular vote.

If that happens, there will be no more state-by-state fights. Every single vote will matter whether it comes from a swing state or from a clear red or blue state. This might be the only real way to have a truly national campaign that only focuses on the swing states.

Anonymous said...

Based on the way this is set up, in the case of a tie, there is no way Sarah Palin would become vice president because there is no way the Democrats will lose the Senate. If it is the present Senate that votes on VP, Biden would still win by 1 vote or more. I suspect Hagel would vote for Biden and there may be other Republican Senators who would vote for him. Judas Lieberman would probably not vote for Palin, but even if he did and all Republicans did, it would still come out 50-49, Biden. This is all academic, however, because Barack is going to crush McCain on Nov.4th.

Senor Pedantic said...

Actually, the election being thrown to the house would probably result in McCain being president.


Republicans have more "unified" control of more states.

And if a state's delegation cannot agree unanimously, then the state loses its vote.

However, the senate works on a simple majority vote.

SO if the election is thrown to congress....

we'll have a McCain/Biden white house. :)

Gerald said...

Who ever is in office right after the official electoral college vote, in December, would be voting. The constitution says immediatly.

Just like the president elect doesn't get to handle any presidential decisions until they take office.

Scott said...

Congress adjourns before the votes are cast in December. They are counted after the newly elected Congress convenes in January. If that count fails to produce a winner, then Congress votes. So it's immediately after the votes are counted, not immediately after they're cast.