[EL] Electoral College Tie "Nightmare"

[Doug Spencer]

*The country would be ill-prepared in practice to manage a tie election in
any circumstance. In present circumstances, the result could be very dark.*

Setting aside the point that an electoral college outcome of 270-268 is not
an "effective tie" since 270 is the threshold for winning, I'm not
convinced the country is ill-prepared to manage an actual 269-269 tie. The
country was ill-prepared in 1800, to be sure, but the 12th amendment tells
us exactly how this scenario would play out:

...if no person have such majority [of electoral college votes], then from
> the persons having the highest numbers not exceeding three on the list of
> those voted for as President, 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 of members
> from two-thirds of the states, and a majority of all states shall be
> necessary to a choice.


If the 2020 election ends in an electoral college tie, each state
delegation in the House gets one vote to decide the winner. By my count,
although Democrats control the House by 38 seats, the breakdown of state
delegations by party (presuming no deaths/resignations/special elections)
would favor a Trump re-election:

REP by 2+ REP by 1 SPLIT DEM by 1 DEM by 2+
25 1 1 3 20
(FL) (MI) (AZ, CO, PA)

A political outcome like this might *feel *controversial, but this rule has
been embedded in the Constitution for 219 years, specifically for this
"nightmare" scenario.

As a matter of trivia, had the Supreme Court abstained from interjecting in
the 2000 election, AND the Florida electoral college votes been contested,
AND the 12th amendment been triggered, the breakdown of state delegations
favored a Bush victory (one abstention from a split state would have tipped
the scales):
REP SPLIT IND DEM
25 4 1 20
(AR, IL, NV, MD) (VT)

---

*Douglas M. Spencer*

*Professor of Law & Public Policy*

University of Connecticut


*Visiting Professor, 2018-2019*

Harris Public Policy

University of Chicago

(415) 335-9698 | www.dougspencer.org



*Social Impact, Down to a Science.*
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