[EL] An Electoral College Tie?

Thu Dec 15 11:05:54 PST 2011

There are several states that have enacted laws sanctioning "faithless" electors; there are also those which treat such electors as not having cast his or her vote.  To my knowledge, no elector has been sanctioned for voting the "wrong" way.  And of course the National Popular Vote proposal undercuts the very idea that electors must vote for the candidate to whom they are pledged in that there would be an arguably superseding statute that directs them to vote for the winner of the national popular vote.

That being said, if there is no majority of electors, or if there is a tie, it goes to the House.  And each state has one vote (Washington DC does not participate).

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rob Richie
Sent: Thursday, December 15, 2011 1:58 PM
To: Justin Levitt
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] An Electoral College Tie?

Justin's partially correct about the fact that falling short of an Electoral College majority is what triggers a "one-vote-per-state" vote in the US House for president, with the Senate voting to pick the vice-president.

What's missing is that there is an interim step -- what happens when the electors meet. We generally assume that electors will be "faithful" and vote for the candidate slate they represented in the election, but there's no guarantee that they will do so. That lack of a guarantee ordinarily doesn't come into play, but it easily could come into play if no candidate wins an Electoral College majority.

Take the 1968 election as an example, That year, if just 1.6% of voters in California had voted for Humphrey instead of Nixon, then Humphrey would have won California's electoral votes and no candidate would have an Electoral College majority. George Wallace would have been sitting pretty, as he could have negotiated with the major parties for the White House. (Indeed, if Wallace would have gone back in time, he might have urged his California voters to back Humphrey -- if half of them had done so, Humphrey would have won California, thereby putting Wallace in the catbird seat.)

Given Wallace's stance on segregation that year, you can imagine what his asking price would have been been. The author James Michener wrote a fascinating book about his experience as a Pennsylvania elector for Humphrey that year, and how he would have led a movement for Humphrey electors to back Nixon to avoid Wallace bargaining for the presidency.

The bylaws of Americans Elect allow its nominee to direct his or her electors to vote for someone other than that candidate -- presumably in exchange for the recipient committing to various expressions of transpartisan governance.

- Rob Richie
On Thu, Dec 15, 2011 at 1:23 PM, Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>> wrote:
It's not just a tie that could send the election to the House of Representatives ... I believe it's any lack of a majority.  If, for example, the Americans Elect candidate wins enough electoral votes to deprive either the Republican nominee or the Democratic nominee of an Electoral College majority, the House decides the election.

Justin

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On 12/15/2011 9:37 AM, Dan Johnson wrote:
I'd love to see opponents of the National Popular Vote mount a robust defense of the House of Representatives in a one-vote-per-state-delegation selecting the President (the result of a not-implausible tie in electoral votes).

Because, after all, that is what they are defending. A tie will eventually occur. Let us hope that the National Popular Vote compact is established and confirmed by the Supreme Court before that mathematical certainty rears its ugly head.

Dan

On Thu, Dec 15, 2011 at 11:24 AM, Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>> wrote:
"An Electoral College Tie?"<http://electionlawblog.org/?p=26579>
Posted on December 15, 2011 9:18 am<http://electionlawblog.org/?p=26579> by Rick Hasen<http://electionlawblog.org/?author=3>

National Journal ponders<http://decoded.nationaljournal.com/2011/12/an-electoral-college-tie.php>.

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