Ties Go to the Loser: A 2012 Electoral College Scenario

I wrote the following commentary with FairVote associate Matt Morris.

A lot of Americans aren't comfortable with a handful of nameless electors picking the president every four years. But at least electors are governed by popular votes. Imagine if in 2012 Members of the U.S. House of Representatives were to pick the president, using rules where the vote of one Member in Wyoming or Delaware canceled out the all the votes of a Texas or California.

It's not far-fetched. To avoid Congress picking the president, a candidate must win an absolute majority of electoral votes - meaning 270 of the 538 votes allocated to the 50 states and District of Columbia. All it takes to trigger a constitutional crisis is an exact tie in electoral votes or enough electoral votes won by an independent or third party candidate to deprive any candidate of a majority.

If that were to happen in 2012, the odds are that the House would elect the Republican nominee no matter what had happened in the national popular vote. Yet over on the Senate side, Democrats would well have the votes to pick the Democrat nominee for vice president, and we'd be in for four long years until the next election.

Since passage of the Twelfth Amendment establishing how Congress picks the president, the 1824 presidential election was the only instance in which no majority in electoral votes was reached. That year, in the wake of the "corrupt bargain" between John Quincy Adams and Speaker of the House Henry Clay, the House picked John Quincy Adams over national popular vote winner Andrew Jackson.

We've actually been lucky to avoid more such twisted outcomes. Just in the past half century, five elections would have been thrown into the House with just a small shift of votes in a handful of states

Take 1968, for example. That year George Wallace and his American Independent party won 46 electoral votes in southern states. A shift of only 0.36% of Richard Nixon's votes in California to Hubert Humphrey would have flipped the California outcome and deprived either candidate of an Electoral College majority. Although Wallace would have used his electors to try to negotiate his own "corrupt bargain" with Nixon and Humphrey over a repeal of civil rights laws, the U.S. House likely would have decided the presidency.

In 1960, John Kennedy would have lost his Electoral College majority with a shift to Richard Nixon of fewer than 10,000 votes -- 4,429 votes in Illinois, 1,609 votes in Delaware 1,247 votes in Nevada, and 58 votes in Hawaii.

In 1976, a switch from Jimmy Carter to Gerald Ford of 5,559 voters in Ohio and 3,687 voters in Hawaii would have reduced Carter's 297 electoral votes to 268. Ford seemingly would have earned 270 electoral votes, but in the actual tally a Washington state elector backed Ronald Reagan. Doing so again would have pushed the election into the House of Representatives.

In 2000, a shift of barely 5,000 votes would have sent the election to the House of Representatives: 269 Florida voters going from Bush to Gore and 184 voters in New Mexico, 2,855 voters in Wisconsin, and 2,073 voters in Iowa going from Gore to Bush.

Even in 2004, when George Bush won the popular vote by more than three million votes, an Electoral College tie would have resulted from a switch of fewer than 20,000 total votes in Iowa, Nevada and New Mexico.

Looking to 2012, New York Magazine already has crunched numbers on scenarios for how President Barack Obama could finish in an Electoral College tie. The most plausible one - if former Minnesota governor Tim Pawlenty were the Republican nominee, for example--would be for Obama to win Virginia and all the states where he equaled or bettered his 2008 national average except for Pawlenty's home state of Minnesota and neighboring Iowa. A tie also would result from Obama winning all the states where he equaled or ran ahead of his national average in 2008, except for New Hampshire. That would leave him with 268, but he'd throw the election into the House by again winning Nebraska's second congressional district, as Nebraska allocates some of its electoral votes by congressional district.

Lurking also in 2012 is the possibility of a strong independent candidacy. If New York mayor Michael Bloomberg were to run and carry his home state or former Indiana Senator Evan Bayh carried a couple Midwest states, the fate of the White House all too easily could end up in the House.

Governed by the 12th amendment, the process by which Congress elects the president and vice-president is simply bizarre. On the House side, Members choose among the top three finishers in electoral votes. Each state casts one vote, regardless of its number of House Members. A state with a divided delegation cannot a vote unless one party gives in. The House keeps voting until the winner secure an absolute majority of state delegations, meaning at least 26 states out of fifty.

Meanwhile, on the Senate side, Senators pick the vice-president by choosing between the top two finishers (rather than the top three, as the House) in electoral votes. Securing a Senate majority is an easier task, which could result in the new vice-president initially serving as president if the House were to remain deadlocked.

The presidency of course isn't necessarily determined by which party has a majority in the U.S. House - rather, it's far more likely to tied to whichever party holds a majority of state delegations. House Republicans are well-positioned for any presidential vote, with majorities in 33 states compared to Democrats with 16 (and a split delegation in Minnesota). Even if Republicans were to lose control of the House in 2012, they might well continue to have majorities in at least 26 states, given their 5-2 advantage in the seven states with only one House Member.

Imagine the uproar, then, if Barack Obama won a majority of the popular vote and Democrats won a majority of seats in both the House and Senate, but an Electoral College tie allowed Republican House Members in 26 states to elect the Republican nominee as president to serve with the Senate's pick of the Democratic nominee for vice-president. You don't have be a partisan to see the prospect of such an outcome as a constitutional time bomb.

Fortunately, there's a solution to this potential crisis. Earning bipartisan support in states around the country and grounded in constitutional powers given to the states, the National Popular Vote plan would guarantee election of the president who wins the most popular votes in all 50 states and the District of Columbia. Every president, every election, would be determined by the votes of ordinary Americans.

Six states and the District of Columbia already have passed the National Popular Vote plan, and the proposal has been introduced in all 50 states since its first consideration in 2006. The agreement likely won't govern the 2012 elections, but it's looking good for 2016. For those who believe ties should not go to the loser, success for the National Popular Vote plan couldn't come a moment too soon.