The Presidential election is just days away and the pundits are speculating about who will win and by what margin. Some talking heads are even saying that one candidate or another will act as a “spoiler” for one of the major party candidates in one or more States.
Some people have event speculated at the possibility of a tied electoral vote, in which Obama and Romney each receive 269 Electoral Votes. This scenario is extremely unlikely and has only happened three times in American history (1800, 1824 & 1836), with one more extremely unusual situation in 1876. What would happen in such an unlikely scenario?
First, allow me to explain how the Presidential election works. One election day, voters cast a ballot for a slate of electors that are pledged to the various Presidential candidates. The winning slates of electors are usually certified in mid-November and under federal law must be certified by December 11. The fifty-one slates of electors (one slate from each State, plus Washington, D.C.) meet and cast the official votes on December 17. The official vote by the electors is sealed and sent to the President of the Senate by December 26 and the electoral votes are officially counted on January 6 before a joint session of the newly sworn-in Congress.
The Office of the Federal Register states, “If a State submits conflicting sets of electoral votes to Congress, the two Houses acting concurrently may accept or reject the votes. If they do not concur, the votes of the electors certified by the Governor of the State on the Certificate of Ascertainment would be counted in Congress.”
Further, “If no Presidential candidate wins 270 or more electoral votes, a majority, the 12th Amendment to the Constitution provides for the House of Representatives to decide the Presidential election. If necessary the House would elect the President by majority vote, choosing from the three candidates who received the greatest number of electoral votes. The vote would be taken by state, with each state having one vote.” The Senate would decide the Vice President, with each Senator having one vote.
This is where things get interesting, especially since the House votes per State delegation. Under the current Congress, the Republican Party has a majority in 33 State Congressional delegations (3 States have the same number of Republican and Democrat Congressmen). The Republican’s will likely maintain control of 34 State Congressional delegations after the election. This means that if there is a tie for Electoral Votes, then Mitt Romney will likely be elected by the House. If the Democrats retain the Senate, then Joe Biden would likely be elected Vice-President. However, there is a very slim possibility that the Republican’s will control the Senate after the election.
Since the 2000 Presidential election, there have been calls for changing or abolishing the Electoral College. If there were an tie vote, I’m fairly certain that the Electoral College would be modified in some manner, and probably in a way that further discourages voting for a “minor party” candidate.