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What Happens If The Electoral College Is Deadlocked?

If you thought the 2000 presidential election was a mess and that Bush v. Gore was a political knife fight masquerading as justice, ponder this: What would happen if the upcoming campaign ended in a tie?

The political landscape of 2012 and the Electoral College system, which was designed in 1787, make this a real possibility. It happened once, in 1800, when Thomas Jefferson and Aaron Burr each received 73 votes. (Incumbent president John Adams came in third.)

As far back as December 2010, New York magazine proposed 16 ways the election could end in a tie. Now that we’ve reached the intermission between presidential primaries and the general election, let’s consider one of the several plausible ways the 2012 campaign could end indecisively.

Using 270towin.com, it is easy to build a believable scenario. For mine, I only assigned swing states; leaving the states that tilt strongly Republican or Democrat alone gives President Obama 196 electoral votes and Mitt Romney 181, with 161 votes up for grabs. I gave Virginia, Iowa, Colorado and New Mexico to Obama. He won all four in 2008, and it is reasonable to assume he could hold on to them. Those wins would yield an additional 33 electoral votes. However, I assigned Ohio, North Carolina, Florida and Nevada to Romney. These states would collectively give 68 more votes to Romney. Maine and Nebraska might split their electoral votes, but for this exercise, I left their votes as blocks, Democrat and Republican respectively. This brings us to 269 votes per candidate.

The 12th Amendment describes what would come next. The pertinent section reads:

“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, 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 or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”

In other words, the members of the House of Representatives from each state would collectively cast their state’s ballot to choose the next president. It is safe to assume that the representatives will vote along party lines. This situation currently favors Romney, because 33 state delegations currently have a Republican majority, against 16 dominated by Democrats. (Minnesota is split 4-4.)

But a Romney victory in case of a tie is not assured, because the current Congress will not make the decision. The political calendar dictates that it will be the next Congress. Though we will probably know on Nov. 4 how states will award their electoral votes (Florida’s experience in 2000 makes me hedge even this bet), we must wait for the electors to meet on Dec. 17 to cast their votes. Congress will not tally these votes until Jan. 6, at which time a winner, or the lack of one, will be formally recognized.

The new Congress will have taken office on Jan. 3, so if the presidential election ends in a tie, it will be the newly elected House of Representatives that will vote on the next president. Democrats need to capture majorities in 10 states currently dominated by Republicans (or nine plus Minnesota) to put Obama over the top. This is a tall order, especially since redistricting has given Republicans an edge in many states this year. But many voters hold neither Congress itself nor the Republican Party in very high esteem right now. The possibility of a throw-the-bums-out movement in this year’s House races is what gives Democrats at least a faint hope of prevailing in an Electoral College deadlock.

Here is another point to ponder: What would you think of President Romney serving concurrently with re-elected Vice President Joe Biden?

If no vice presidential candidate wins an Electoral College majority, the Senate will choose the new vice president, but the senators will vote individually, not state-by-state. The current Senate configuration has 51 Democrats, 2 independents who caucus with the Democrats, and 47 Republicans - a formula that would probably keep Biden in office even if Obama loses in the House. But enough seats are up for grabs in the upcoming Senate elections that Republicans could capture a majority in that house too, which would be good news for Romney’s as-yet-unidentified running mate.

I am neither defending nor attacking the Electoral College. Like the Senate itself, its role is to enhance the influence of small, rural states at the expense of more populous places. The Electoral College is part of the system, just like early primaries in Iowa and New Hampshire, and it simply is not going away any time soon.

I have been watching presidential elections since 1968, and I can only think of two that I would describe as boring. Those were the re-elections of Ronald Reagan in 1984 and Bill Clinton in 1996. Both ran when the economy was expanding smartly and the country was at peace, and the results of both campaigns were foregone conclusions long before the votes were counted.

Obama can only dream of such a race. He might win or he might not, but this year’s contest is certainly going to hold our attention.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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