What if it’s a Tie?

By Leonid Balaban

Last week in class we have talked a little bit on the possible Electoral College tie and I wanted to elaborate some more on this potential scenario.

There are 52 days before the 2008 Presidential and Congressional elections in the U.S and the situation could not have been more obscure. Latest nationwide polls, shown below, represent the race for the While House between Obama and McCain to be statistically tied. By looking at the most recent state by state polls and the newest electoral college map, we can see that the election is very close as well. What’s more, there are anywhere from 7 to 11 battleground states (depending on various polls) where both candidates are within 5% points of each other.

National Polls

Real clear politics Average 09/05 – 09/12

Gallup Tracking

09/10 – 09/12 2761 RV 47-45 McCain +2

Rasmussen Tracking

09/10 – 09/12 3000 LV 48-45 McCain +3

Hotline/FD Tracking 09/10 – 09/12 913 RV 45- 44 McCain +1

Newsweek 09/10 – 09/11 1038 RV 46-46 Tie

State by State Polls

State Obama McCain Margin

Colorado (9) 48.3 46.0 Obama +2.3 Toss Up

Ohio (20) 45.6 47.8 McCain +2.2 Toss Up

Michigan (17) 47.2 45.2 Obama +2.0 Toss Up

Pennsylvania (21) 47.3 45.0 Obama +2.3 Toss Up

Virginia (13) 46.7 49.3 McCain +2.6 Toss Up

Nevada (5) 44.6 45.6 McCain +1.0 Toss Up

New Mexico (5) 47.0 44.7 Obama +2.3 Toss Up

New Hampshire (4) 48.0 44.7 Obama +3.3 Toss Up

Florida (27) 44.5 49.5 McCain +5.0 Leaning

Wisconsin (10) 47.0 41.7 Obama +5.3 Leaning

Indiana (11) 43.3 48.0 McCain +4.7 Leaning

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With the election being that close, I would like to contemplate an unlikely but not necessarily an improbable scenario where both candidates end up with 269 electoral votes. The circumstances for this situation would occur if the Obama wins all the states that John Kerry carried in 2004, as well as Colorado and New Mexico but loose New Hampshire.

Another possible scenario would take place if once again the Democrat wins Kerry states, plus picks up 13 electoral votes in Virginia and 1 electoral vote in Nebraska, but looses New Hampshire. If any of those two situations were to come to fruition, we would go to a proverbial “overtime”.

First, before the election becomes a responsibility of the House of Representatives as stated in the 12^th amendment of the Constitution, “there would be a 41-day opportunity for either side to coax an elector to switch sides.”[1]

Amendment 12

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4. The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

If no electors change their minds, then the House gets to vote for the President. Each state’s newly elected delegation will get one vote; that’s means that California and Wyoming will each get to cast only one vote. If a state’s delegation is split evenly, it would abstain from voting. The following table represents what would be a vote for the President assuming that each state’s delegation composition would stay in tact. From the table, we can see that Democrats have an edge of over Republicans of 28 to 20, with 2 states abstaining because of a tie.

Alabama	R
Alaska	R
Arizona	Tie
Arkansas	D
California	D
Colorado	D
Connecticut	D
Delaware	R
Florida	R
Georgia	R
Hawaii	D
Idaho	R
Illinois	D
Indiana	D
Iowa	D
Kansas	Tie
Kentucky	R
Louisiana	R
Main	D
Maryland	D
Massachusetts	D
Michigan	R
Minnesota	D
Mississippi	D
Missouri	R
Montana	R
Nebraska	R
Nevada	R
New Hampshire	D
New Jersey	D
New Mexico	R
New York	D
North Carolina	D
North Dakota	D
Ohio	R
Oklahoma	R
Oregon	D
Pennsylvania	D
Rhode Island	D
South Carolina	D
South Dakota	D
Tennessee	D
Texas	R
Utah	R
Vermont	D
Virginia	R
Washington	D
West Virginia	D
Wisconsin	D
Wyoming	R

The Vice President would then be chosen by the Senate. It is somewhat unclear as to whether Vice President is chosen by the current Senate or newly elected one. This uncertainty is very important because the current composition of the Senate is 49-49 with 2 independents. Bernie Sanders – Vermont Senator would most likely vote for a Democrat, which Joseph Lieberman – Connecticut Senator, might vote for a Republican. Then, the election, as in the year 2000, would once again be referred to the Supreme Court. If, however, the vote is held by a newly elected Senate, then Democrats, who are poised to gain some additional seats in that chamber, would certainly elect their party candidate as a Vice President.

As bizarre as this election might be, there is a slim chance that we might end up with John McCain as President and Barack Obama as his Vice President.

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[1] http://www.npr.org/templates/story/story.php?storyId=4093121