Good Grief--a Tie???

One of the most fascinating and contentious presidential elections in modern memory comes to an end in less than three weeks. The polling remains relatively close; the candidates remain combative. The magic number in the all-important Electoral College is 270. The last two elections have been extremely close, both in the popular vote and the electoral vote. George Bush, as we know, lost the popular vote to then Vice President Al Gore but won the electoral vote and thus the presidency, by a margin of 272 to 266. Four years ago President Bush narrowly won the popular vote over Senator John Kerry and increased his winning total slightly in the Electoral College – the electoral vote was 286 to 252 in favor of Bush.

Notice anything interesting about the Electoral College numbers? That’s right; they add up to 538, an even number, thus allowing, at least hypothetically, for the possibility of a 269-269 tie in the electoral vote. After much hand wringing and gnashing of teeth, the question would rapidly become: Now what? For the answer, we’re forced into the deep recesses of Article II of the Constitution. To begin, we can say this – the new President will be chosen by the House of Representatives. In fact, the newly elected House (as of November 4), would make the call. But, here’s where it gets really arcane. According to Article II, “in choosing the President, the votes shall be taken by States, the representation from each state having one vote.” This means, among other things, that the 53 representatives from California would get together and decide between Senator McCain and Senator Obama. The one representative from Wyoming gets together with herself and similarly decides. California and Wyoming’s votes are then counted equally!

Still with me? OK, good. Let’s take a state like Ohio, with an even number (18) of representatives. If they divide their votes 9-9, Ohio can’t cast a vote and would be forced to pass. Other states with an even number of representatives may find themselves in the same predicament. Let’s move ahead with the Constitutional language: “a majority of all the states shall be necessary to a choice”. With 50 states, that means a candidate would need 26 states to secure the election. To illustrate, suppose this occurs: McCain wins 25 states, Obama gets 21, and four deadlock. McCain has not won. The House would need to vote again (and possibly again and again) until either McCain or Obama got to 26.

How likely to occur is the above-described scenario? Not very, but certainly possible. Here’s an example: McCain wins all the Bush states from 2004 except Iowa (7 electoral votes), New Mexico (5), and Nevada (also 5). Obama wins all the Kerry states plus the three just mentioned. That’s 269 to 269. And there are several other combinations that lead to the same result. Politicians being politicians, they will tend to vote for the candidate of their party. That favors Obama; the House is presently controlled by the Democrats and indications are they will increase their majority in next month’s election. But let’s concoct one or two more political fantasies. Suppose there’s not only an Electoral College tie but a McCain victory in the popular vote. Would that result pressure Obama leaning Democrats to vote the other way? We’ll probably never know because an electoral tie remains highly unlikely. But, to come close to putting a cap on this, how many highly unlikely events have we seen already in this election? And, for those metaphysically politically wonky, think about this. How does the 23rd Amendment, giving three electoral votes to Washington, D.C., mesh with Article II? Does the one D.C. delegate to the House of Representatives have a vote in the event of a tie? Or not? That’s enough for now – I’m giving myself a headache. Congratulations on your perseverance if you have made it all the way here to the finish line.