A Trump-Biden Tie Would Be a Political Nightmare — But Maybe a Boon to Democracy

Six months out from the presidential election, voters are caught up in what-ifs. What if Joe Biden proves the pollsters wrong and clinches a second term? What if Donald Trump retakes the White House, squashes his criminal charges with the power of the chief executive and rewrites the strictures of American government in the image of MAGA?

But there’s one what-if Americans aren’t paying enough attention to: What if they tie?

It sounds outlandish. It was literally a plot point in HBO’s political satire, Veep. It hasn’t happened for 200 years, not since the House clawed the presidency from Andrew Jackson, who won the popular vote but didn’t manage to win over the Electoral College, and elected his opponent, John Quincy Adams — prompting a massive populist backlash that remade American politics.

And yet it’s an entirely plausible outcome once again, thanks to recent efforts that could lead to a scenario in which neither candidate makes it to that golden number of 270. If that comes to pass, the fallout could be just as existential as it was in 1824.

In Nebraska, Republicans are attempting to change the way the state awards its electoral votes; it’s one of only two states, along with Maine, that allocates electors by congressional district — meaning both candidates can pick up electoral notches in their belts. The liberal stronghold around Omaha reliably delivers one vote to Democratic candidates, but that would change if Republicans get their way; all of the bright-red state’s electors would go to Trump, tipping the already delicate Electoral College balance ever so slightly in his favor.

Adding to the equation, Robert F. Kennedy Jr.’s campaign threatens to pull just enough votes to tip states like New Hampshire, Nevada and Michigan into Trump’s column. A 269-269 tie is not impossible to imagine, and for a party that has lost the popular vote in seven of the past eight presidential elections, it may be the best avenue to victory, if the already uneven scales in the Electoral College don’t deliver a sufficient edge.

In the case of a tie, which hasn’t happened in exactly 200 years, the House decides the election, per the 12th Amendment, with each state delegation allotted one vote. Republicans currently control 26 House delegations. Democrats control 22, and two others are tied.

We could be on the road to an unthinkable scenario: Democrats win the popular vote for the presidency and House, but Republicans return Donald Trump to the White House through the 12th Amendment mechanism.

If history is a guide, it would have profound implications for the future of American democracy. To understand why, we need to wind the clock back, to the hotly contested presidential election of 1824.

On Feb. 9, 1825, members of the House of Representatives met in an extraordinary session to elect the sixth president of the United States. Washington, then still in its infancy — barely a city, with large tracks of muddy swampland dotted with half-finished, marble buildings — was blustery with snow.

By the terms of the 12th Amendment, since no presidential contender had attained a majority of the Electoral College in the prior year’s election, the choice would fall to the House.

In 1824, the four leading candidates for president were all Democratic Republicans — the party descended from Thomas Jefferson’s political organization: Adams, the secretary of State; Jackson, a former senator for Tennessee; Treasury Secretary William Crawford of Georgia; and House Speaker Henry Clay of Kentucky. The opposition Federalist Party had long been in steep decline and scarcely existed outside a small number of pockets on the east coast. The question wasn’t whether a Republican would win. Rather, which Republican.

In the preceding elections that had delivered the White House to James Monroe and, before him, James Madison, the Republican congressional delegation had met in a joint House-Senate caucus to nominate the party’s official candidate. That process fell apart in 1824, as all four contenders enjoyed sufficient regional support to make a nominating process all but impossible. Instead, they fought it out with the voters. And that was itself an innovation.

As recently as 1816, during the last contested presidential election, the vast majority of states had still empowered their legislatures to elect presidential electors. But in 1824, 18 out of 24 states empowered voters to make that choice directly. In effect, a republican system that once favored elite control over political affairs was slowly but surely evolving into a mass participation democracy.

The reasons for this shift were complicated. In large part, colonial-era patterns of deference and elite control over politics and the economy had been unspooling for decades, owing to the democratic forces the Revolution had unleashed. In addition, new Western states seeking to attract settlers found that offering broader white male suffrage and political participation was a powerful recruitment tool; in turn, older Eastern states felt obliged to democratize their governments to retain population.

The chief beneficiary of this shift was Jackson, whose checkered relationships with elite politicians in Washington belied his broad popularity with the white male electorate. While Adams, Crawford and Clay played an insider’s game — glad-handing and horse trading with members of Congress, whom they expected might end up selecting the next president — Jackson’s supporters launched broadsides in the growing regional press and urged voters to support the only candidate who understood “honest yeomanry” and embodied the “virtue,” or political integrity, required to save the capital from corruption.

In what was essentially the first presidential election where we can glean the popular vote, Jackson won 42.5 percent to Adams’ 31.5 percent. Clay and Crawford ran far behind, each garnering 13 percent. No one enjoyed an Electoral College majority, though Jackson led Adams, 99 votes to 84.

Unlike the presidential election of 1800 — the only other time then or since in which the election fell to the House — the 1824 contest was never particularly close. It had taken Thomas Jefferson 36 ballots to beat Aaron Burr. It took Adams only one. After sitting down for three hours with Clay, the two men agreed to forge a coalition. Clay delivered three key delegations (Kentucky, Missouri and Ohio) to his former rival, and with those, the presidency. He later accepted the position of secretary of State in the Adams administration, widely considered a steppingstone to the presidency.

Whether Clay and Adams explicitly struck a “corrupt bargain” has long been a matter of intense speculation. But the truth hardly mattered. Perception was everything. “The Judas of the West has closed the contract and will receive the thirty pieces of silver,” Jackson fumed. “His end will be the same.”

Adams was the last person to win under the old rules. Though he was, like Clay, an ardent modernizer who supported government investments in science, infrastructure and education, he governed in an age that straddled the Early Republic and Age of Jackson. His predecessor, outgoing President James Monroe, had been on the boat with George Washington as they crossed the Delaware River to Trenton on Christmas Eve in 1776. He still wore knee breeches, shoe buckles and a powdered wig. He echoed earlier presidents in bemoaning the influence of “factions” and parties and heralded his administration as an Era of Good Feelings in which men of upbringing and stature governed by consensus, in harmony.

But that world — one in which a handful of elite actors arrogated most political power to themselves, in the belief that only the elite could act in a disinterested way — was gone. A new world rooted in mass democracy was on the rise, and the election of 1824 did much to accelerate it.

Almost from the moment he took office, Adams had a target on his back. Under the leadership of rising political talents like New York’s Martin Van Buren, Jackson’s supporters created the first real presidential campaign, mobilizing newspaper editors; using patronage to win the support of state legislators, who in turn “nominated” the former general for president; creating state and local organizations that would prove critical in turning out the vote in 1828.

Both Adams, whose supporters would eventually coalesce under the National Republican banner, and Jackson, whose partisans called themselves Democratic Republicans, embraced new methods of communication, including partisan newspapers, handbills and even song (Jackson’s official campaign ballad was “The Hunters of Kentucky”). It ended up being the filthiest presidential campaign to date. The Adams press enthusiastically pressed rumors (probably true) that Jackson’s wife had still been married to another man when he took up house with her. Jackson men, in turn, cast the incumbent president as an effete intellectual, unequal to governing a country that was fast extending its frontier. They drew the choice as one “Between J.Q. Adams, who can write/And Andy Jackson, who can fight.”

Ultimately. Jackson’s popular appeal eclipsed that of Adams, whom many people regarded as cold and patrician. By 1828 every state except Delaware and South Carolina selected electors by popular vote. In that new electoral regime, Old Hickory swept the Electoral College by 178 votes to 83. It was the birth of the antebellum party system, one in which the object of a campaign was not so much to convince the small sliver of undecided voters as to drive turnout among the party faithful. The steady expansion of the franchise in the first decades of the 19th century, and the new electoral style that Jackson ushered in, would soon inspire new mechanisms to stir popular passions, including party clubs, rallies, campaign songs, pole raisings (a throwback to England’s Maypole rituals) and torchlight processions meant to inspire awe and fervor among ordinary voters. Democrats were first to adopt these practices, but the Whig campaign of 1840, in which young men flocked to the banner of the war hero and everyman William Henry Harrison, set a new standard for democratic electioneering.

In effect, Adams and his supporters won the election of 1824, but the backlash to their victory opened the floodgates to a wave of democratic participation.

Fast forward 200 years, and the United States is arguably at a precipice.

On two occasions over the past 25 years, Republicans have lost the popular vote, only to win in the Electoral College, where small-population states enjoy a broad electoral advantage — an advantage they similarly enjoy in the Senate, where the 39 million residents of California have the same representation as the 584,000 residents of Wyoming.

Now, Republicans, who could well lose the popular vote again, having won it only once in the past 32-plus years, may try to engineer a Trump win in the House.

In short, by playing the inside game, and using a vote in the House to decide the outcome, Republicans could perpetuate their power. A democratic system that is no longer responsive to the will of the majority could very well break. But it could also create unintended consequences.

As in 1824, if the election is thrown to the House, 2024 could be a watershed year for American democracy. Long-stalled political reforms — from introducing Supreme Court term-limits to abolishing the Electoral College — could finally sail through atop a wave of populist democratic outrage.

In 1824, Adams won the battle but lost the war. In 2024, Trump could find himself in a similar situation.