[EL] Electoral College Tie "Nightmare"

[Josh Douglas]

Indeed, the real "nightmare" scenario -- from a constitutional perspective
-- is if a candidate does not receive the votes of 25 state delegations if
the race is thrown to the House, as the 12th Amendment requires a
"majority." Ned Foley (with a student) has done some interesting work
<https://lawreview.law.miami.edu/wp-content/uploads/2011/12/v64_i2_ncolvin_efoley.pdf>
on this true potential constitutional crisis.

Joshua A. Douglas
Thomas P. Lewis Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
859-257-4935
joshuadouglas at uky.edu
Twitter: *@JoshuaADouglas <https://twitter.com/JoshuaADouglas>*

*   Find me at www.JoshuaADouglas.com <http://www.joshuaadouglas.com/>.*

On Thu, Apr 18, 2019 at 1:33 AM Doug Spencer <dougspencer at gmail.com> wrote:

> *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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