October 25, 2004

Shedding light on electoral ties

By: Matt Glassman

Interested in becoming president this year? If so, hope for an electoral college tie. With an unlikely, but plausible, perfect tie–269 electoral votes for both Bush and Kerry–anyone meeting the Constitutional qualifications for president could end up president. Here’s how:

Most people know the Electoral College, and not popular vote, decides presidential elections. Many people also know that if no one gets a majority of Electoral College votes the Constitution directs the House of Representatives to choose the President. This has happened twice (not counting 1876, a technically different situation)–in the strange tie of 1800 and the 4-way election of 1824. The contemporary prospects for a House election are slim. Only an electoral tie–or a third party winning electors–could produce it. However, a tie is plausible this year: if all states vote the same as 2000 except New Hampshire and Nevada, the electoral vote would be 269 to 269.

An Electoral College tie would produce overwhelming media attention on the possibility of a “faithless elector” who disregards the vote return in his or her state and picks whichever candidate he or she wishes. In 2000, such a move by three electors would have produced a Gore victory. Earlier this month, a Republican elector, Richie Rob, made rumblings that he might not cast a ballot for Bush if the President wins West Virginia.

A more intriguing, and potentially more consequential, possibility is an elector “shedding” a vote to a third candidate. In an election thrown to the House, the Twelfth Amendment specifies that it choose from the top three electoral vote recipients. In a tie, only Bush and Kerry will have electoral votes, unless some elector decides to shed his vote, making the outcome 269-268-1. Why would an elector do this? It’s simple:

Shedding a vote would still send the election to the House. Currently, the Republicans would handily win a vote between Bush and Kerry. Democratic electors thus have an incentive to get a third candidate on the House ballot–particularly a centrist who could draw moderate Republicans into a coalition with House Democrats to defeat Bush. To succeed, it would have to be a prominent moderate Republican, and it would have to be someone willing to attempt a revolt in the Republican Party. It would almost certainly have to be John McCain.

While McCain might reject this and throw his support behind Bush, he might seize the opportunity, much like Aaron Burr did in 1800. It would be his chance to reshape the GOP. He has never personally liked Bush and, lest we forget, it could make him president. Certainly there are House GOP members who would prefer a moderate Republican to Bush.

Bush Republicans would obviously try to prevent such a revolt. However, few GOP defectors would be needed. The Twelfth Amendment also specifies that the House vote is by state delegations, not simple majority. To win, you must get the vote of 26 state delegations. Along strict partisan lines, there are 30 GOP delegations, 16 Democratic delegations (including Vermont’s independent but left-leaning Bernie Sanders), and four deadlocked delegations.

Imagine a three-way House choice between Bush, Kerry, and McCain. McCain could prevent Bush from gaining the required 26 states by deadlocking 5 states. Assuming full Democratic support for McCain, defection of less than a dozen key GOP members could deny Bush victory. After a first ballot impasse, it would be anybody’s game, but McCain, as the moderate of the three, would be a favorite to win a politically brokered deal.

But Republicans might act even earlier. Think back to the original “shedding” of an elector to McCain. Although a tie vote would be known in early November, the electors do not meet until December, giving them time to consider their options. The obvious Republican counterattack would be to encourage multiple Republican electors to shed votes. Multiple electors shedding toward either a left-winger (say, Howard Dean) or a right-winger (say, Tom DeLay), could keep a moderate, agreeable third candidate such as McCain out of the contest, making the House vote between Bush, Kerry, and a radical. The House GOP would hold together, and Bush would win handily.

But why would the Democratic electors allow this? They could plan to shed more electors towards McCain. A race to the bottom could then ensue such that any radical combination of electoral votes–even scenarios where Bush or Kerry get few or no votes–could occur. Depending on how aware electors are of the possibilities and to what degree they coordinate their actions, almost any three candidates could end up in the House.

While farfetched, the idea of the perfect electoral tie and electoral shedding opens the frightening possibility of an American election in true disarray–one in which anyone, announced candidate or not, could end up President. Even you.

Matt Glassman is a graduate student in Political Science at Yale University.

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