Can the Electoral College Survive an Electoral Tie?

In recent days, commentators on both sides of the political spectrum have begun to speculate about the possibility of an electoral tie. What if Mitt Romney and Barack Obama both obtain exactly 269 electoral votes?

A few scenarios plausibly get us there. Among the more likely has Romney winning a few swing states that currently appear to be leaning in his direction: Florida, North Carolina, and Virginia. To these, he could add Iowa, Nevada and Colorado to achieve 269 votes. If Obama takes the remainder of the swing states, the two men will be tied.

A tie is mathematically possible, but realistically improbable. Although commentators like to grouse about the possibility in close election years, the Electoral College has never produced such an outcome between two presidential candidates.

We came close once. In 1800, two candidates tied with 73 electoral votes, but that situation was an anomaly soon cured by the 12th Amendment. Before the amendment, electors could not distinguish between their votes for President and Vice President. Thus, when the Democratic-Republican Party nominated Thomas Jefferson for President and Aaron Burr for Vice President, their electors had no option but to cast identical votes for each candidate. As a result, the two men tied. The 12th Amendment cured future problems of this nature by separating voting for the two offices.

Assume, however, that the perfect electoral storm occurs. What will follow?

The Constitution provides that the House of Representatives is to pick the President. The new House is sworn in on January 3 and the electoral votes are counted on January 6. Thus, the new House should be responsible for selecting the President. In this election, each state has a single vote: California with its 53 congressmen would have 1 vote, as would Wyoming with its 1 congressman. A President is elected when a majority of states (26) vote for one candidate. If the House remains in Republican hands, Romney would most likely be elected.

The Vice President is selected by a different procedure in the Senate. Each Senator has one vote; a majority wins. If the Senate remains under Democratic control, then Vice President Biden could be sworn in with President Romney.

At this juncture, Electoral College opponents are doubtless outraged. Why do we have a system that allows for such crazy outcomes? Shouldn’t we reform it?

Of course not. An electoral tie is not a crisis. In 1800, the House voted 36 times before it elected Jefferson. This at a time when the Constitution was still relatively new. Yet that document was—and is—strong enough to withstand these situations. Jefferson went on to serve so successfully that the manner in which he was elected is nothing more than a footnote in history.

If one election every 200 years results in a House contingent election, is that really a reason to replace our whole system? No. Although there will be 24-hour news hysteria for a few days or weeks, this, too, shall pass. We have a uniquely successful and stable presidential election system. One electoral tie will not change that.