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How An Electoral College Tie Could Happen

an audience watches the first debate between Donald Trump and Hillary Clinton projected on a large screen in the LBJ Presidential Library
The first 2016 presidential debate, aired at the LBJ Presidential Library in Austin, Texas.
Photo by Jay Godwin, courtesy the LBJ Library.

If you’re a fan of the Broadway musical “Hamilton,” you can probably name the one time a presidential election ended in a tie: the election of 1800, when Thomas Jefferson and Aaron Burr each received an equal number of electoral votes.

There is a real chance that 2016 could become the second.

Yes, it’s a long shot. But as this year’s World Series taught us, never dismiss a long shot too soon.

As I write this post, FiveThirtyEight’s “Polls Plus” model estimated Donald Trump a chance of winning the presidency right around 30 percent. But in the case of an Electoral College tie, those odds skyrocket, since the Republican-controlled House of Representatives would then decide on the winner. (Could the Republicans lose control of the House? It’s not impossible, but Republicans hold their largest House majority since 1928 and pretty much no one thinks Democrats can close that gap this year. But it isn’t as simple for the GOP as just holding their majority. Let’s back-burner this topic for a moment.)

So how do we get to an Electoral College tie? Here’s one scenario. Assume Trump loses all of the three major industrial states he has tried to put in play: Wisconsin, Michigan and Pennsylvania. This result generally follows recent poll data in those places. Colorado and New Mexico both seem safely in Democratic hands too. Iowa and Ohio were leaning toward Trump at this point, so let’s say he wins both, along with Nevada and Florida, which were very close. Let’s also give Trump Utah, despite it being less safe than it would be in another year.

For simplicity’s sake, we can assume Clinton would win all four electoral votes in Maine and that Trump would pick up all five in Nebraska. These two states could, in fact, split their votes, though Maine has never done it before. (Nebraska did split in 2008, when the district containing Omaha and its suburbs went to Obama while the rest of the state went to John McCain.) For now, though, we’ll leave these votes unsplit, just as I did back in September.

Trump badly needs to take New Hampshire, which is a stretch for him given the current numbers. If he did not secure New Hampshire’s four electoral votes, could he pick them up elsewhere? He might, possibly in next-door Maine. While the state has gone Democratic in every presidential election since 1992, Maine’s residents did elect Republican Gov. Paul LePage – more than once. Stranger things have happened.

The real lynchpin for Trump to have a hope of winning, or even tying, the Electoral College will be North Carolina. Polls and the resulting predictions have lately been very close there, and much of the outcome will probably come down to voter turnout. If voters, especially minority voters, turn out in force in urban centers like Charlotte and Raleigh, it could tip things toward Hillary Clinton’s camp; similarly, the state has several major college campuses, and how many of the students are registered to vote – and in North Carolina rather than their home states – could make a difference.

Clinton’s campaign is clearly well aware of North Carolina’s strategic importance. Not only did Clinton and her running mate, Tim Kaine, visit the state this week, but Obama and Joe Biden have also made or will make appearances in Chapel Hill, Charlotte and Fayetteville. Other high-profile Clinton supporters, including Michelle Obama, Bill Clinton, Bernie Sanders, Lena Dunham and Will Ferrell have also recently appeared or plan to appear to persuade North Carolina voters to turn out for their candidate on Tuesday.

If Clinton wins North Carolina, the presidential election is effectively over. It is hard to see where Trump could pick up those 15 lost votes in a map where I’ve already given him several of the current close calls. But if Trump wins North Carolina, an electoral tie remains possible. Clinton needs 270 votes to win, but given our system, Trump probably only needs 269.

A mini, or perhaps not-so-mini, constitutional crisis could erupt if Democrats make significant gains in the House, which would choose the next president if the Electoral College resulted in a tie. Right now, Republicans have majorities in 33 state delegations, while Democrats dominate 14 and the remaining three are evenly split. While the GOP can expect to keep its overall majority in the next Congress, if the Republican-majority state tally is reduced to 25 or less, the next Congress won’t be so presumably Trump friendly. But which version of the House will get to decide – the one that will be in office when the electoral votes are counted in December, or the one that will be sworn into office on Jan. 3, 17 days before the next president is due to take the oath?

The 12th and 20th Amendments, which established the tie-breaking procedures and the swearing-in dates, are less than crystal clear about this. We have not had a tie since the 20th Amendment moved the start of the new congressional and presidential terms up to January from March. So things are apt to get, shall we say, heated if the current House tries to select the next tenant of the Oval Office.

Four years ago, I considered the possibility of President Mitt Romney serving with Vice President Biden. That was because, in the case of an Electoral College tie, the Senate chooses a vice president – voting individually, rather than state-by-state like the House. Given the races as they currently stand, do I think we could end up with a Democratic Senate that would install Tim Kaine under President Trump if the current Senate is blocked from choosing Mike Pence? Come back Monday, when we’ll talk about the odds facing Democrats who want to regain Senate control for their party.

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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