An Electoral College tie, explained

Holly Munson

It reads like a not-very-fun Choose Your Own Adventure story with one unexpected twist after another: a tie in the Electoral College. Here’s everything you need to know to make sense of the 2012 election’s potential adventures—or misadventures.

Electoral College 101

When voters cast their ballots for president on Election Day, they’re not technically voting for the candidate—they’re voting for a set of representatives in the Electoral College who will then decide on the next president.

The Electoral College was set up by Article II, Section 1, of the Constitution. The number of electors granted to each state is equal to that state’s combined number of senators and representatives in Congress. To become president, a candidate must receive a majority of the electoral votes—and today, with a total of 538 electors, that means a candidate needs 270 electoral votes.

The math

There are several plausible scenarios that would give Barack Obama and Mitt Romney 269 electoral votes each—both one short of the victorious 270.

In one swing-state scenario, Obama would win Ohio, New Hampshire, and Wisconsin, while Romney would carry Florida, North Carolina, Virginia, Colorado, Nevada, and Iowa.

There are numerous other speculations—see Constitution Daily’s tie scenarios, plus check out Politico’s app that allows you to test out your own electoral puzzle.

It happened before

It wouldn’t be the first time there was a tie in the Electoral College.

A tie first occurred in 1800. The tiebreaking vote by the House chose Thomas Jefferson as president over Aaron Burr, his running mate—a pairing so awkward that the nation quickly passed a constitutional amendment, the 12th Amendment, to change the system to allow electors to vote separately for president and vice president.

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In 1824, there wasn’t a 50-50 tie, but a split among four candidates meant that no one received the required majority, so the election went to the House. In that case, although Andrew Jackson won the popular vote, the House selected John Quincy Adams as president.

Additionally, in 1837 the vice presidential candidates did not reach a majority in the Electoral College, so the vote for vice president went to the Senate, where a majority of senators chose the winner.

What would happen?

Although it was first addressed by Article II, if there were a tie in the Electoral College we would follow the process outlined in the 12th Amendment (ratified in 1804): “the House of Representatives shall choose immediately, by ballot, the President” and “the Senate shall choose the Vice-President.”

The catch is that the votes in the House aren’t tallied by each representative: “the votes shall be taken by states, the representation from each state having one vote.” That means that all the representatives within a given state vote as a bloc, and each state has one vote. The majority of votes within that state bloc determine its vote.

The votes in the Senate are cast by the individual senators.

That also means that with an even 50 votes in the House and 50 in the Senate (D.C. doesn’t get a vote), there is potential for yet another tie vote. But the 12th Amendment covers that too: “if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.” This section was later superseded by the 20th Amendment, which moved the start of the new session of Congress from March to early January.

If the Senate is unable to break a tie for the vice president, according to the Presidential Succession Act of 1947, the speaker of the House serves as acting president.

Electors officially cast their votes in December, and the electoral votes are tallied in a joint session of Congress in January.

Who would win?

It would be the newly elected Congress that makes the tiebreaking vote, and with congressional elections equally in play it’s impossible to say for sure which way they’ll swing. But assuming that the Republicans maintain control of the House and Democrats maintain control of the Senate, the likely result would be Mitt Romney as president and Joe Biden as vice president.

Constitutional chaos

Sure, a tie in the Electoral College would further extend what has been a discouragingly long, negative campaign. And there would be sharp debates about the proper procedure. But on the bright side, it would be a valuable teaching moment, reminding us to turn to the Constitution for answers.

Shining a spotlight on the Constitution and a sure-to-be-entertaining Romney-Biden presidency? Now that’s winning combination.