[EL] Electoral College Tie "Nightmare"

Fri Apr 19 11:02:45 PDT 2019

One of the many reasons why the National Popular Vote interstate compact
should be adopted is that it effectively eliminates the "nightmare"
possibility of an election for President being thrown into the U.S. House of
Representatives where each state has one vote (and the election for Vice
President being thrown into the U.S. Senate) - whether created by a 269-269
tie in electoral votes or absence of a majority of electoral votes created
by a third party.  

The compact takes effect when enacted by states possessing a majority of the
electoral votes (270 of 538).  All of the 270+ presidential electors from
the compacting states will be those nominated in association with the
presidential candidate that received the most popular votes in all 50 states
and the District of Columbia.  

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Fax: 650-941-9430

Email: john at johnkoza.com <mailto:john at johnkoza.com> 

URL: www.johnkoza.com <http://www.johnkoza.com/> 

URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/> 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Smith, Brad
Sent: Thursday, April 18, 2019 7:49 PM
To: Rob Richie <rr at fairvote.org>; Mark Scarberry
<mark.scarberry at pepperdine.edu>
Cc: Election Law <law-election at department-lists.uci.edu>
Subject: Re: [EL] Electoral College Tie "Nightmare"

Of course, absent the electoral college, in 1876 Democrat Sam Tilden wins
with a clear majority of the popular vote--a majority, however, gained by
massive fraud and vote suppression in the South--and rolls back civil rights
protections with much more vengeance than occurred under Hayes. 

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

  _____  

From: Law-election [law-election-bounces at department-lists.uci.edu] on behalf
of Rob Richie [rr at fairvote.org]
Sent: Thursday, April 18, 2019 8:10 PM
To: Mark Scarberry
Cc: Election Law
Subject: Re: [EL] Electoral College Tie "Nightmare"

Contingent elections aren't just caused by ties, of course -- it's just a
candidate lacking a majority. Keeping heads firmly in the sand, we can keep
wishing away the potential of regionally successful candidates or a
Perot-type independent candidates able to win some states.

But we don't have to look too far back to find a very instructive example.
In 1968, Richard Nixon won a narrow popular vote plurality and a seemingly
convincing 301-191 electoral vote margin over Hubert Humphrey. But
segregation defender George Wallace won 46 electoral votes in carrying
several southern states. If Humphrey had flipped Nixon's win in California,
which went to Nixon by less than 3.1%, then there would have been no
electoral vote majority -- that is, unless Wallace didn't first negotiate to
give the president to the candidate best able to roll back civil rights
protections. That kind of deal had happened in 1877 in  the
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fhistoryengine.richmond.
edu%2fepisodes%2fview%2f317&c=E,1,ZfqPAFpF-b-hwsjS3YajIArQCsAU6Sa2xodDKnWBnk
1BtxSNXpocBjaVwjX2EtvqZjnFf4JrzPZZcDdEYfQ06UIwTK-jDEZGoiVSNXov0WRQAxQ,&typo=
1> "corrupt bargain"  or "compromise" (depending on one's take) when
Rutherford Hayes got his 1-electoral vote majority after disputes in three
southern states were resolved in his favor in exchange for his help in
rolling back Reconstruction. Notably, the 1824 election resulted in what
also was called a corrupt bargain -- raising questions in my mind about the
niftiess of our current system compared to popular vote elections.

Relating to Derek's post we don't need to take away DC's electors or
constitutional fix.. We could just have an even-numbered House with a simple
act of Congress. Many state legislative chambers have such chambers. Our
FairVote report with the Bipartisan Policy Center
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fwww.fairvote.org%2fbest
_practices_for_collaborative_policymaking%23clearing_a_path_for_collaborativ
e_legislation&c=E,1,aVIbiG0xcJUQGW2GIG358DGF1GujjxFbvfHO_w-94ppV_YhgGFmQaKsj
ikJ79eBFduDvIYp4o4k-sQL1zXspwl9yDpNQEo1vRlpGJ1hOHkQxJNg,&typo=1> of the
times those chamber are tied suggest that those can be some of the better
functioning, less polarizing session.

- Rob

On Thu, Apr 18, 2019 at 7:50 PM Mark Scarberry
<mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu> >
wrote:

Derek's work shows the difficulties in implementing a reasonable popular
vote system. It doesn't seem sensible to set one up to deal with what should
be a very rare situation (and one in which flaws in a popular vote system
might create even greater divisivion, and distrust in our institutions).

Mark 

Prof. Mark S. Scarberry

Pepperdine University School of Law

  _____  

From: Law-election <law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu> > on behalf of Samuel
Bagenstos <sbagen at gmail.com <mailto:sbagen at gmail.com> >
Sent: Thursday, April 18, 2019 4:36 PM
To: Derek Muller
Cc: Election Law
Subject: Re: [EL] Electoral College Tie "Nightmare" 

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
24255 Pacific Coast Hwy
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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
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.dougspencer.org&c=E,
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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
<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2flawreview.law.miami.edu
%2fwp-content%2fuploads%2f2011%2f12%2fv64_i2_ncolvin_efoley.pdf&c=E,1,Cj8cIm
aSBlgcPGcqlc4Qf7Rw7epG4hA3HH9sDKFT5RNRqJ4525VGn_iTJ_deiyL1_ipVIE5S96xFlvIlyS
jil1JtSSNk9zpZjldhuSwEuLVN01xevlAQ&typo=1> work on this true potential
constitutional crisis. 

<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2fuknow.uky.edu%2fsites%2
fdefault%2ffiles%2fUK-logo.png&c=E,1,etiiwkq77C7-oUvPMwc5sQRP9jETbL73AOB0CR5
Nt69tKYX_ir0SXYe2VmjJMaZvK_uriQnLC6NsGEfB8YknLXleUZWYXZqdQF9lBzE4LHaJ&typo=1
> 

Joshua A. Douglas

Thomas P. Lewis Professor of Law

University of Kentucky College of Law

620 S. Limestone
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Lexington, KY 40506
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859-257-4935 

 <mailto:joshuadouglas at uky.edu> joshuadouglas at uky.edu

Twitter: @JoshuaADouglas <https://twitter.com/JoshuaADouglas> 

   Find me at www.JoshuaADouglas.com
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7VxeOYi5bMs9VjK8U4RY5_N1yyxitdj6hBx3&typo=1> .

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
<https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fwww.dougspencer.org&c=E,
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Social Impact, Down to a Science.

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~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
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