[EL] Does 269-269 worsen the faithless elector problem?

[Frank Reilly]

Never heard of it either.  I know the AG has a charitable entity section, but that's all I know.  I'll talk to Patrick before I send them in -- Maryanne says we should send them all at once....

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Derek Muller
Sent: Thursday, October 25, 2012 7:15 PM
To: Election Law
Subject: [EL] Does 269-269 worsen the faithless elector problem?

Dear all,

Perhaps one of you knows the answer to this problem. If the electoral vote is tied at 269, the race is thrown to the House of Representatives, where, it is assumed, Mitt Romney would win.

But, I imagine that there would be a significant amount of canvassing of Mr. Romney's electors by Barack Obama's team in an attempt to win over just one of those electors and break the tie. After all, we would likely know most of the electors shortly after November 6, but the electors would not cast ballots until December 17.

Additionally, the contingent election in the 12th Amendment allows for the top three electoral vote-getters to be voted on in the House. If it's 269-269, isn't there a great incentive for, say, one of Mr. Obama's electors to vote for Jill Stein, or one of Mr. Romney's electors to vote for Gary Johnson or Ron Paul? Then, we might have an even more absurd contingent election: 269 electoral votes for Mr. Obama; 268 electoral votes for Mitt Romney; 1 vote for Ron Paul; top three thrown into the House. (Which adds an additional problem: what if there are several candidates who each receive a single castaway electoral vote? Who wins the coveted third slot before the House if Ms. Stein, Mr. Johnson, and Mr. Paul all receive 1 electoral vote?)

Best,

Derek

Derek T. Muller
Associate Professor of Law
Pepperdine University School of Law
24255 Pacific Coast Hwy.
Malibu, CA 90263
+1 310-506-7058
SSRN Author Page: http://ssrn.com/author=464341
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