[EL] Electoral College Tie "Nightmare"

Thu Apr 18 07:14:26 PDT 2019

Have to run off and teach, but the last time an election was decided under
the back-up procedure, it was extremely divisive for our politics -- and
that was at a time when (a) the 12th Amendment was relatively new, so that
people were probably aware of the back-up procedure, particularly in light
of the facts of the 1800 election that prompted the amendment; and (b)
presidential elections were not yet widely understood as plebiscitary as
they are today.  Today, I doubt many people even know about the procedure,
and the questions about its legitimacy will be much greater.  So I think
Marshall is right to say that our polity is ill-prepared for this
eventuality.

On Thu, Apr 18, 2019 at 10:07 AM Doug Spencer <dougspencer at gmail.com> wrote:

> 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.*
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>>>
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>>
>>
>>
>> --
>> Samuel Bagenstos
>> sbagen at gmail.com
>> Twitter: @sbagen
>> University of Michigan homepage:
>> http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
>>
>>
>>

-- 
Samuel Bagenstos
sbagen at gmail.com
Twitter: @sbagen
University of Michigan homepage:
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
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