[EL] Electoral College Tie "Nightmare"
Samuel Bagenstos
sbagen at gmail.com
Thu Apr 18 18:41:23 PDT 2019
Do people think that an Electoral College tie implies a popular-vote tie?
Why would we need a recount of the popular vote just because the electoral
vote is tied?
On Thu, Apr 18, 2019 at 9:39 PM John Tanner <john.k.tanner at gmail.com> wrote:
> 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>
> 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
>> 24255 Pacific Coast Hwy
>> <https://maps.google.com/?q=24255+Pacific+Coast+Hwy+Malibu,+CA+90263&entry=gmail&source=g>
>> Malibu, CA 90263
>> <https://maps.google.com/?q=24255+Pacific+Coast+Hwy+Malibu,+CA+90263&entry=gmail&source=g>
>> +1 310-506-7058 <+13105067058>
>> SSRN: http://papers.ssrn.com/author=464341
>> Twitter: http://twitter.com/derektmuller
>>
>> On Thu, Apr 18, 2019 at 7:15 AM Samuel Bagenstos <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>
>>> 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
>>>>>> <https://maps.google.com/?q=620+S.+Limestone+Lexington,+KY+40506&entry=gmail&source=g>
>>>>>> Lexington, KY 40506
>>>>>> <https://maps.google.com/?q=620+S.+Limestone+Lexington,+KY+40506&entry=gmail&source=g>
>>>>>> 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
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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
>>>
>>>
>>> _______________________________________________
>>> 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
>
>
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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
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