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The 10th Inning:
How a Presidential Election Tie Could Elect a Wildcard Candidate
Exciting news for all you John McCainiacs out there! Your hero could still be elected President this year. Then again, so could Dick Cheney, Nancy Pelosi, or Robert Byrd. Almost any native born citizen 35 years or older can take advantage of the fact this country is not a democracy. The key to victory this November 2 is not who wins the nationwide popular vote, but who wins the state-by-state Electoral Vote. And that creates one big loophole - what if no-one does?

Under the Constitution each state has an Electoral Vote equal to its Congressional delegation - the combined total of its Senators and Representatives. Since each state has two Senators and at least one Representative the minimum Electoral Vote is three.

In order to be elected president a candidate needs an absolute majority of votes in the Electoral College. Because 50 states equals 100 Senators, and because Congress in 1911 set the number of Representatives at 435, the Electoral College therefore should be comprised of 535 Electors. The problem is passage of the 23rd Amendment in 1961 gave the District of Columbia three votes in the Electoral College (but no corresponding Senators or Representatives - hence all the "Taxation without Representation" license plates in the nation's capital). The 23rd Amendment expanded the Electoral College to 538 votes, making the threshold to win a presidential election 270 votes.

But half of 538 is 269. So what happens if Bush and Kerry split the Electoral College at 269 votes apiece?

It could happen if a single state breaks ranks from the last election. For example, if Kerry sweeps all the Gore states and Louisiana is the only state to defect from the Bush column the Republicans lose nine votes in the Electoral College, the Democrats gain nine, and we are locked at 269 apiece. If Colorado is the only state to change hands on election night the same scenario applies.

An Electoral College deadlock could also occur through the transfer of multiple states from one party to the other. If West Virginia (5 votes in the Electoral College) and New Hampshire (4 votes) both vote for Kerry and nothing else changes the candidates will be tied at 269 votes apiece. Kerry adding Nevada (5 votes) and New Hampshire to the Gore states also creates an Electoral College tie.

The candidates could even grind out a no-decision if Bush comes out slightly the worse in an exchange of states. For example, if Bush solidifies his position in the Mid-West, picking up Minnesota (10 votes), Wisconsin (10 votes) and Iowa (7 votes) but Kerry sweeps the East, winning Florida (27 votes) along with West Virginia and New Hampshire the networks will again be left unable to declare a winner.

There are loopholes within the existing Electoral College that either Bush or Kerry may be able to exploit. Currently there are two states where the winner-take-all model of casting Electoral votes is not in effect. Nebraska and Maine award two votes to the winner of each state, and allocate the remaining votes according to which candidate wins each congressional district.

Since both states have been swept by one party or the other so far neither has actually split its vote in the Electoral College. However, a reform initiative that will be on the ballot this year in Colorado if passed would make a split of that state's Electoral vote almost inevitable.

Colorado has certified Amendment 36, the "Electoral College Reform Initiative" (better known as the "Make Your Vote Count" proposal) will be decided by the voters this November after supporters gathered enough signatures to put the measure on the ballot. If the initiative passes, effective with this election Colorado's Electoral votes will be distributed according to the percentage of the popular vote in Colorado rather than the usual winner-take-all format. Under this scenario, if Bush ekes out a narrow victory in Colorado Kerry will still claim four of the state's nine Electoral votes while Bush will secure five. Had the proposal had been in place four years ago Al Gore would be president today.

If the 269-269 scenario plays out attention will then focus on the mechanics of the Electoral College itself. The Electors in each State will meet on December 13 to select the President and Vice President of the United States. The electors sign, seal and certify the packages of Electoral votes and immediately send them to the President of the Senate, the Archivist of the United States and other designated Federal and State officials, who must receive them by December 22. On January 6 next year Congress will meet in joint session to count the electoral votes (unless Congress passes a law to change the date).

This process, a rote formality when a majority has been secured by one candidate, would be subject to immense scrutiny in the event of a tie, when each vote would carry with it the destiny of the nation.

Each individual Elector would be placed under the spotlight. The Supreme Court has held the Constitution does not require that Electors be completely free to act as they choose and therefore political parties may extract pledges from Electors to vote for the parties' nominees. However, the Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged. A bare majority of states maintain laws providing that faithless Electors may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. Nonetheless, Electors in 24 states are not bound by state law to cast their vote for a specific candidate.

"Rogue" Electors have cast votes for candidates other than those whom they were pledged to support in five out of the last ten presidential elections, including the last one (when one of the three Gore Electors from DC refused to cast her ballot). If just one Elector defected from Bush to Kerry or Kerry to Bush with the candidates deadlocked it would create a 270-268 majority for one electoral tickets, which would take office on January 20 as President and Vice President.

If all the Electors remain loyal and the rival tickets are still deadlocked one vote shy of a majority at this point the Constitution requires the election be decided in the incoming House of Representatives. There is precedent - there have been two elections to date decided in the House.

In the early days of the republic each Elector was given two votes to cast in the Electoral College. In 1800, Thomas Jefferson and his running mate Aaron Burr tied at 75 Electoral votes apiece. It took the House 36 ballots to confirm Jefferson's election, largely on the recommendation of Alexander Hamilton. In 1804 Burr killed Hamilton in a duel. That same year, to prevent a repeat of the congressional deadlock (and extra-congressional bloodshed) the 12th Amendment was passed requiring each Elector to cast their votes specifically for a President and Vice President. This system has delivered an outright victor in every subsequent election other than 1824 when none of the four contenders (Andrew Jackson, John Quincy Adams, William Crawford, and Henry Clay) could command a majority of the popular or Electoral vote. With the support of Clay's allies in the House second-place finisher Adams was able to leapfrog Jackson into the Oval Office.

In case of a House ballot each state must vote as a bloc, and each state delegation regardless of size is entitled to cast one vote. Therefore the bloc vote of California's 53 representatives can be outweighed by the combined "bloc" votes of the one-member delegations from Montana and Wyoming. To be elected a presidential ticket must secure an absolute majority of states - 26 out of 50.

In the current House the Republicans control 30 state delegations to 15 for the Democrats (four are evenly divided and one is comprised of a third party, the Socialist who is Vermont's sole Representative). While it is extremely unlikely the Democrats could secure a majority of states in the upcoming Congressional elections it is not beyond the realm of possibility they could take or split enough delegations to drag the Republican total below the magic number of 26.

Note there is another wrinkle to the "Rogue" Elector factor. The 12th Amendment specifies the House must choose from among "the persons having the highest numbers not exceeding three on the list of those voted for as President" by the Electoral College. Imagine if in the event of a 269-269 tie just one of the Electors cast a ballot for a third Constitutionally eligible individual for President - say, John McCain - making the final vote in the Electoral College Kerry 269, Bush 268, McCain 1. The House would then be entirely within its Constitutional rights on the basis of that single vote to elect McCain President.

Maybe that's what Richie Robb has in mind. In September, Robb, the maverick Republican Mayor of South Charleston and a GOP Elector for West Virginia, said he may vote against George W. Bush in the Electoral College even if the president carries his state's popular vote. Robb faults Bush on Iraq and the budget deficit but he only began to seriously consider bucking the party line after the attacks began on Kerry's service record. "I served in Vietnam, and I think Bush's surrogates, and I think really the Bush campaign, went beyond the line with those ads," Robb told the Charleston Daily Mail. "It's not likely that I would vote for Kerry," he continued, but he is considering either voting for a third candidate or withholding his vote altogether. "I know that among some in my own party, what I'm discussing would be considered treasonous," Robb admitted, "But I'm not going to cheer lead us down the primrose path when I know we're being led in the wrong direction." Could Robb make fellow Vietnam Vet John McCain president?

If the House fails to select a President before January 20 attention then shifts to the Senate, which under the 12th Amendment is empowered to select the Vice President. The winner must receive an absolute majority of the votes cast, making the target 51 votes. The Senate currently has a partisan split of 51 Republicans, 48 Democrats, and one Democrat-aligned independent.

There is more than the Vice Presidency at stake here. Under Section III of the 20th Amendment, "If a President shall not have been chosen before the time fixed for the beginning of his term... then the Vice President elect shall act as President until a President shall have qualified."

If the Democrats fail to control a majority of House delegations after November 2 they may still have an ace to play. The 12th Amendment specifies the House must have a quorum of at least two-thirds of its delegations present in order for the ballot to proceed. The Democrats may boycott the House ballot in order to bypass that stage of the process and get John Edwards elected acting President by the Senate if they regain control of that body this year.

On the other hand, the Republicans may have an ace of their own. If the Senate is split 50-50 after November 2 the presiding officer of the body until January 20 will be none other than Vice President Dick Cheney, and he could cast the tie-breaking vote for himself. Cheney would than be sworn in as acting president for the next four years.

However, if the Senate does split down the middle Democrats may challenge Cheney's right to cast the tie-breaking vote. The 12th Amendment specifies "a majority of the whole number shall be necessary to a choice" in the Senate and technically Cheney is not a Senator. Furthermore, the ballot in the Senate also requires a two-thirds quorum to proceed and either side could negate it simply by not showing up.

Should no Vice President emerge out of the Senate federal succession laws would presumably make the speaker of the House the acting President. Republican Dennis Hastert currently holds the speakership but if the Democrats win back control the new speaker would be Nancy Pelosi.

However, if the House elections turn out to be very close that body could be without a speaker at the beginning of the session. Next in line under the law of succession is the Senate's president pro tempore, currently Republican Ted Stevens of Alaska, but if the Democrats take back the Senate West Virginia octogenarian Robert Byrd would hold that honor.

Complicated? Certainly. Far fetched? Maybe. What the Founding Fathers had in mind? Unlikely. What anyone wants? No. But while the Electoral College remains in place the possibility exists of a deadlocked election and the subsequent initiation of a series of contingencies that would lead no-one can be sure where.

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