[EL] Electoral College Tie "Nightmare"

Thu Apr 18 07:07:21 PDT 2019

Sam,

I think the normative appeal is that, like the Electoral College, the 12th
amendment requires a majority as opposed to a plurality of votes to be the
winner. That's not a sufficient justification ipso facto
<https://www.politico.com/magazine/story/2019/01/12/electoral-college-reform-conservatives-223965>.
Nor is it necessarily true anymore. Certainly not with respect to a
majority of the population. The 26 states with Republican-majority House
delegations represent a population of 151,361,595 which is 12.3 million
fewer than the population of the 23 state Democratic-majority states.
(According to the Census, there were 6 million fewer voters in the 26
Republican-majority states than the 23 Democratic-majority states). These
differences outpace Trump's 2.8 million vote deficit in the 2016 election.

None of this speaks directly to your point about whole-state-delegations.
At least in theory, the whole-state-delegation preserves the compromise to
provide a voice both to "the people" (thus the House, not the Senate) and
"the states." However, I'd love to hear a stronger defense from those who
actually find the 12th amendment attractive on normative grounds, beyond
historical ossification. My point was simply that the process for dealing
with an electoral college tie is unambiguous, applicable to all candidates
equally, and known in advance. In other words, I question whether America
is "ill-prepared" for this scenario. (As Josh notes, we *are *ill-prepared
for a scenario where the 12th amendment leads to a 25-25 tie in the House).

Doug

---

*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.*

On Thu, Apr 18, 2019 at 7:42 AM Samuel Bagenstos <sbagen at gmail.com> wrote:

> Is there any normative justification for using the
> state-congressional-delegations-voting procedure as a backup in the case of
> an Electoral College tie?  Particularly in a world where people do go to
> the polls in every state to cast ballots for president?  (That it's been in
> the Constitution for 219 years is a fact that explains why the backup
> procedure is legally compelled, but it doesn't count as a normative
> justification in my view.)  All of the normative justifications for the
> Electoral College have a strong scent of rationalization these days, but
> the backup stretches the rationalization yet further (if I may mix a
> metaphor).
>
> On Thu, Apr 18, 2019 at 8:29 AM Josh Douglas <joshuadouglas at uky.edu>
> wrote:
>
>> 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.*
>>> _______________________________________________
>>> Law-election mailing list
>>> Law-election at department-lists.uci.edu
>>> https://department-lists.uci.edu/mailman/listinfo/law-election
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> Samuel Bagenstos
> sbagen at gmail.com
> Twitter: @sbagen
> University of Michigan homepage:
> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20190418/c34ed42e/attachment.html>