BREAK GLASS IN CASE OF EMERGENCY

Posted on | by Ed

I have turned over too many plausible tie scenarios in the Electoral College (play around here) to neglect looking beyond Election Day to our eminently logical contingency procedures.

Short answer, if you want to skip the next few paragraphs: in case of a tie, Obama wins.
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The long answer is that elections not decided in the Electoral College are decided in the House. But members do not vote – states do. This is called the Unit Rule. Each state's delegation to the House meets and casts a single vote.
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We expect that this takes place along party lines within the states, i.e. Indiana has 5 Democrats and 4 Republicans, and hence Indiana's 1 vote presumably goes to Obama.
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The incumbent Congress, not the folks who get elected in November, make the call (see comments for correction: incoming Congress decides). Right now, here is how our state delegations break down:

Republican (21): AL, AK, DE, FL, GA, ID, KY, LA, MI, MO, MT, NE, NV, NM, OH, OK, SC, TX, UT, VA, WY

Democrat (27): AR, CA, CO, CT, HI, IL, IN, IA, ME, MD, MA, MN, MS (!!!), NH, NJ, NY, NC, ND, OR, PA, RI, SD, TN, VT, WA, WV, WI

Split (2): AZ, KS

The scenario, even assuming AZ and KS throw their support to McCain, clearly favors Obama. The GOP, in response, will suddenly develop a very principled stance (unrelated to the fact that standard unit voting leads to their defeat) in favor of state Congressional delegations voting in accordance with the popular vote in their states. This, coincidentally, would almost certainly lead to a McCain win, as the GOP excels at winning lots of states in which no one lives.

Of course the Democrats in the House wouldn't go along with that at gunpoint, but that's not the goal. The goal will simply be to flood the talk radio airwaves with torrents of "fairness" and "disenfranchising" and "the will of the people" talk.

I wouldn't call a tie likely, but it could happen. Among swing states, let's say IA, MN, CO, and NM go to Obama. Give McCain VA, OH, and NH and you've got yourself a tie. That, in my opinon, is entirely plausible. Accordingly I have a hard time seeing how McCain wins without sweeping the big trio of OH-PA-VA. Single-state polling isn't great, but Obama has sizeable leads in IA, NM, MN, and other supposedly competitive states that McCain would have to win if he doesn't sweep the Big Three.

(Polling caveat: I rip on it a lot, but even if results fall within margins of error I subscribe to the belief that consistency counts. For example, Obama's lead in various Michigan polls is always within the margin of error but he is the consistent winner in poll after poll (see also: McCain in Missouri). While I wouldn't put any stock in a single poll showing one guy with a 2-point lead, twelve polls over 4 months are a different story.)

8 thoughts on “BREAK GLASS IN CASE OF EMERGENCY”

  • Patti says:

    Should I be worried that the Clinton Campaign will try to win it in the House? I could her being offered as some type of reconciliation figure to bring peace between the Obama and Palin factions. Sorry. McCAIN. McCAIN is running for President.

  • Patti says:

    I apologize, Jay. I had some issues with the typos – mainly hitting the Tab button while editing and being unable to retrieve my comment after sending it through the series of tubes.

    Ed, thank you for bringing this process to light. I oft forget how things procede if the Electoral College is deadlocked. It is seldom that I am reminded of how Hayes was elected, but even in the case of a tie… is there still the possibility of a backroom deal in which neither Obama nor McCain ends up elected? I secretly miss watching Terry McAuliffe going around to the various news programs, trying to convince us that Hillary Clinton could still be President.

  • BK says:

    Why is anyone worried about appeasing the GOP? If the election of the next President goes to a vote in the House there should be no way in HELL that any deals are going to be made with the Republicans.

    The Dems WILL get beat-up by talk radio – so what, it happens every day…

    The Dems WILL get beat-up by some of the TV talking heads – see above.

    The GOP will get up and cry foul – see above. Also, see Dems after 2000 election – all the crying in the world didn't change that outcome.

    I'm tired of people on the left constantly being worried about making our view points acceptable to the right or feeling like we need to govern by reaching consensus with them.

    I worked for a Democrat in a 99 seat mid-western state house when we controlled less than 40 seats. It was hell. There was absolutely no consideration given to the Dems from the GOP leadership. Legislative politics today is about gaining and protecting majorities – not about making friends with those across the aisle.

    I don't want the middle ground becoming policy on things like:
    Abortion; Gay Rights; Education; the Environment; Foreign Policy; Health Care; Creationism; Abstinence.

  • Ed says:

    I wasn't entirely clear on that point (and it seems, from asking around, that very few of my colleagues are either) and, in this instance, checking the Constitution did not make things clearer.

    Article 2 of the Constitution notes that, in case the standard process produces a tie, "the House of Representatives shall immediately chuse by Ballot." This verified that the incumbent Congress makes the decision when I double-checked, i.e. "immediately."

    Unfortunately that original language refers to ties that occured before the 12th Amendment, i.e. before the ballot was bifurcated to specifically indicate candidates for president and VP. Before that, everyone ran for president and the VP was whoever finished 2nd. The Article 2 language refers to ties in THAT scenario, not the contemporary scenario.

    Federal law requires electors to certify votes on December 12. If that produces a tie, the incoming Congress has a joint session to verify and approve the Electoral Vote on Jan 6. This happens regardless of whether there is a tie. But in the case of a tie, that Jan 6 meeting is when the Unit Vote takes place.

    As the Democrats are expected to make gains in the House, I am dubious that the situation would change, but I regret the error.

Comments are closed.