[EL] Electoral College Tie "Nightmare"

Thu Apr 18 18:39:13 PDT 2019

 the possibility of a nation-wide recount is too horrible to contemplete

> On Apr 18, 2019, at 7:35 PM, Samuel Bagenstos <sbagen at gmail.com> wrote:
> 
> Why not use the popular vote as a back-up in the case of an EC tie?  Or would making that change just raise the question why we weren’t using the popular vote in the first round?
> 
> On Thu, Apr 18, 2019 at 6:33 PM Derek Muller <derek.muller at gmail.com <mailto:derek.muller at gmail.com>> wrote:
> It's comically early to begin fantasizing about this kind of apocalyptic election disaster scenario, akin to the breathless concerns that a 4-4 Supreme Court would be asked to decide the 2016 election.
> 
> But to Sam's point, I assume you mean normative justification for preserving the practice today? I think it's a challenge. Understandably, at the ratification of both the Constitution and the 12th Amendment, the commitment was to a majority winner; a lack of a majority meant some contingent procedure; the electors would have narrowed the field to five (pre-12th) or three (post-12th) or in a case of a tie two, and the House (acting like the Senate with one vote per state, to protect small states, but lacking the aristocratic trappings of the Senate) would frequently pick the winner from that narrowed list. Given that we moved to a two-party system, it became quite easy to secure Electoral College majorities, and this contingent procedure fell away (1824 excepted, of course--along with a bizarre and relatively inconsequential 1836 vice presidential contingent election in the Senate).
> 
> But, today? I think no one expects Congress to act "nineteen times in twenty" as George Mason put it to pick the president. And I think you're right that in the event of 1824 did not play out well, and it might play out worse today.
> 
> But what other solution in the event of a tie? (269-269 ties, incidentally, are the result of giving DC electors: 2 senators per state [always an even number] + an odd-numbered house to prevent many ties + 3 electoral votes for  DC = an even number.)
> 
> A runoff in the event of an Electoral College tie makes little sense except to concede that there is some randomness in an election and a hope that the randomness rolls in a different direction the next time. Or maybe it makes sense--to drop away all third party candidates and perhaps clarify the results. Of course, this, too, could still be a tie.
> 
> A constitutional amendment to give the largest state an extra electoral vote? To give DC an even number of electors? To dictate that the winner of the "national popular vote," however conceived, wins a tiebreaker?
> 
> At best, a (rationalized!) defense would argue the present system (1) gives smaller states an advantage [even if that advantage is fairly non-partisan today] in a tiebreaker and (2) is no worse than the other forms of (suboptimal) tiebreakers I listed out there, plus (3) is really out there for situations where no one gets a majority and we turn it over to Congress to choose (because, if we can't choose, why not let Congress do it?), and the tiebreaker stuff is the tail wagging the dog.
> 
> These aren't exactly breathtakingly persuasive in my view, but (2) strikes me as a respectable Burkean and pragmatic choice.
> 
> That said... I think the next time a contingent election occurs and the election is thrown to the House, there will be a constitutional amendment ratified by the several states before the next election changing our system to a national popular vote. I think (okay, I speculate) the bipartisan reaction against it would be that strong.
> 
> Derek
> 
> Derek T. Muller
> Associate Professor of Law
> Pepperdine University School of Law
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> On Thu, Apr 18, 2019 at 7:15 AM Samuel Bagenstos <sbagen at gmail.com <mailto:sbagen at gmail.com>> wrote:
> 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 <mailto: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 <http://www.dougspencer.org/>
> Social Impact, Down to a Science.
> 
> On Thu, Apr 18, 2019 at 7:42 AM Samuel Bagenstos <sbagen at gmail.com <mailto: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 <mailto: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
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> 
>    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 <mailto: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 <http://www.dougspencer.org/>
>  
> Social Impact, Down to a Science.
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> -- 
> Samuel Bagenstos
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> Twitter: @sbagen
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