The 269-269 Electoral Tie Scenario

Last Sunday on the political talk shows, I noticed an interesting thing. An electoral math scenario for the outcome of the election in the Electoral College is being floated by some pundits: what happens if we get a 269-269 tie? I've noticed it more from right-wing commentators than left, but I think its true appeal is to the political wonk of either stripe -- a "what if" game to make this already exciting election even more so.

Here is Bill Kristol's version of the tie scenario, from last week's Fox News Sunday show:

"Here's an amazing fact. If you take the 2004 results, give McCain New Hampshire, which Kerry won, which I think is reasonable, give Obama New Mexico, Colorado and Iowa, which Bush won, in all of which now Obama is ahead, you end up -- leave everything else the same, which is quite possible, you end up with 269-269 result. That would be fun."

So what would happen if the Electoral College did tie? Well, it's a little complicated. Some of us might remember from our seventh grade civics classes that the election then goes to the House of Representatives. And you might think that because Democrats have an advantage right now in the House (and are expected to pick up seats this year) that this would automatically mean "President Obama." But you'd be wrong.

There are two quirks in the system that make it almost impossible to accurately predict what the outcome would be. The first is that each state's House delegation gets only a single vote in choosing the president. In this instance, the House works more like the Senate, in that states are considered of equal weight to each other. Each state's House delegation in such a vote first gets together and holds their own vote amongst themselves. Whoever wins this intra-state vote gets that state's vote for president. If a state has a tie in the intra-state vote, then it is not counted in the presidential vote.

The second problem is that it is the incoming House which votes, not the outgoing House. This means that you'd have to accurately predict almost every House race to come up with who would ultimately win.

Now, the advantage definitely rests with Obama, since the incoming House is likely to be more Democratic than the outgoing House. Even the Wall Street Journal is confirming this with headlines of late such as "Republicans Gird for Big Losses in Congress." But losing a few House races here and there to the Republicans could change the outcome of the vote. And there are a surprising number of states where one or two House seats changing hands either way could affect the outcome. [Note: I'm putting the lists of state data at the bottom, if you're interested.]

For a baseline, let's first consider the current makeup of the House. If everyone in the House kept their seat, and neither party gained a single seat, this is how the vote for president would play out: Democrats 28, Republicans 21, Tie 2. Obama wins, 28 votes to 21 (total is 51 because Washington, D.C. is counted as state for presidential elections).

Now a worst-case scenario for the Democrats. If every state that was separated by party by only one vote in the House went Republican, then the vote would be: Democrats 9, Republicans 34, Tie 8. McCain wins in a landslide, 34 to 9. But this is assuming wildly unlikely events will take place -- like DC's only House member switching to Republican hands -- so Democrats shouldn't get too worried about the lopsided numbers.

Conversely, if all of the one-vote states switched to Democratic hands (much more likely in the current political climate), then we'd have the best-case scenario for Obama. If all the one-vote states switched from Republican to either Democratic or a tie (it depends on whether the state delegation is odd or even in number), then the result would be: Democrats 40, Republicans 8, Tie 3. Obama wins in a landslide, 40-8.

Again, neither of these is likely to happen, at least not to this magnitude. The Democratic best case involves flipping such states as Utah and Wyoming, neither of which I'd bet the farm on. But you can see what a wide range of possibilities there are, just counting states that could flip parties by changing only one House seat. There are a whopping 34 of these states, 19 currently Democratic, 13 currently Republican, and two states that are tied. And there are a further 11 states that would flip by a change of two House seats, which I didn't even include in the best and worst case scenarios.

You can do the math, and make your own guesses as to which states are actually in danger of flipping. Factoring in Bush's approval ratings, the wave of new Democratic voters, and the fact that most of the country believes we're on the wrong track, and it looks like a pretty good year for Democrats. But we can't expect Democrats to hold every single one of their seats, as they astoundingly managed to do in 2006. Overall, the new Congress will be more solidly Democratic, but losing a key seat here and there might be decisive.

My armchair analysis of the state races, which I must admit I didn't do much research on (for each individual House race) shows that the House vote could be closer than expected. Call it an educated guess. In my off-the-cuff scenario, twelve states flip. The Democrats win an extra seat in Alaska, Missouri and New Mexico. The GOP picks up a seat in Mississippi, changing their vote to a tie. And the Republicans pick up a majority with a single seat switch in Arizona, Indiana, Louisiana, North Dakota, South Dakota, Tennessee, and West Virginia.

My choices are arguable, at best, I realize. Eyebrows might be raised about calling Alaska and Louisiana at-risk, but in both states there have been local scandals which could cause a change. I chose other states for other reasons, and no doubt you can come up with a believable alternative to what I've laid out. But the scary part is that this scenario winds up: Democratic 25, Republican 24, Tie 2. And that's counting on a win for Democrats in Alaska.

Meaning, in the unlikely event of a 269-269 Electoral College tie, the subsequent vote in the House could be a lot closer than Democrats may think. Once again, even the Electoral College tie scenario is a longshot. So be aware that we're speculating on top of speculation here. But if a tie does indeed happen, the President of the United States may be chosen by a single House district changing hands in some obscure state.

 

[Below is the data I used, getting delegation counts from the House of Representatives' website. "Solid" states are those which have more than two votes in the majority. For the one-vote and two-vote difference states, the states [in brackets] would change from one party to a tie. The states without brackets would change from one party to the other. Only states with an even number of House delegates have the possibility of a tie.]

 

Solidly Democratic House delegations:
CA, MA, NY

Solidly Republican House delegations:
FL, TX, VA

States currently tied:
AZ, KS

One-vote difference states:

Democratic:
[AR], CO, [HI], IN, IA, [ME], [MN], [MS], [NH], NJ, NC, ND, [RI], SD, TN, VT, WV, [WI], DC

Republican:
AK, DE, GA, [ID], [KY], LA, MO, MT, NV, NM, [SC], UT, WY

Two-vote difference states:

Democratic:
CT, IL, MD, OR, PA, WA

Republican:
AL, MI, NE, [OH], OK

Chris Weigant blogs at: ChrisWeigant.com

Comments

[mvy]

Under the National Popular Vote bill, one presidential candidate is guaranteed to get a majority of the nation's electoral votes. Under the bill, all of the state's electoral votes would be awarded to the presidential candidate who gets the most popular votes in all 50 states and DC. The legislation would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes (270 of 538). So, the winning candidate will always get at least 270 electoral votes. Therefore will never be a tie in the electoral votes and never be a situation in which no candidate gets a majority of the electoral votes. Hence the election of the President would never be thrown into the U.S. House (with each state casting one vote) and the election of the Vice President would never be thrown into the U.S. Senate.

www.NationalPopularVote.bill

[JoDeeVa]

Just to add to the angst of some, with other "what-if" scenarios...
I still recall a Phil Donahue show back when there were those daring to suggest that Ralph Nader/ Ross Perot ? might have an impact on elections. They were contemplating the possibility of an Independent candidate peeling off votes from the Democrats/ Republicans, resulting in an electoral vote tie. MANY scenarios were considered..including, if I remember correctly:

Should the House deadlock, not electing the President, the Senate votes for the VP. If the House is still deadlocked by Inauguration Day, the VP is sworn in until the House elects the Prez. I can't remember other specifics, ie. if a time frame exists. And, what happens if the Senate deadlocks? (50/49/1 makes that a possibility, too!) At that point, WOULD Nancy Pelosi be sworn in? WOULDN'T that be ironic? I think I'll hit the library or google later! We all know the Presidential succession, don't we?..it's the pesky details that elude in such situations.

Anyway, interesting and fascinating subject, eh? Someone commented about this being a fav topic among political junkies in the months to come..count me in! Who would have predicted 2000 or what the last 8 years have wrought? Strange days...

[Chris Weigant - Huffpost Blogger]

JoDeeVa -

When the House votes for Pres, the Senate automatically votes for Veep. They go hand in hand. BUT if the House deadlocks by Jan. 20 (Inaugural Day) then if the Senate has chosen a Veep, they are installed as "Acting President." When the House gets around to deciding, then that person becomes President and the AP goes back to being VP.

If the Senate is also deadlocked on Jan. 20, then it is thrown back to the House. And at this point, they can elect ANYONE as Acting President. So, while Acting President Pelosi could be an option, she'd have to get the votes in the House to do so, it wouldn't be automatic.

For those wonkically-inclined, the first article I did on this (last July) might interest you -- "The Wildest Presidential Election Since 1824?"

http://www.chrisweigant.com/index.php/2007/07/11/the-wildest-presidential-election-since-1824/

And also, if you want to check the text of the Amendments where this is discussed (has links to XII, XX, XXIII), check out the comments to this article on my site:

http://www.chrisweigant.com/index.php/2008/06/11/the-269-269-electoral-tie-scenario/#comments

-CW

[Mogamboguru]

Anolish the electoral vote. And by doing so, just abolish the Federal Reserve Bank - which, BTW, isn't federal at all, but PRiVATE - with it!

[DRaymond]

At least you aren't describing sending the election to the house as some sort of 'constitutional crisis' as it was done to scare people against voting for Perot or Gore.

Which brings up another point. Among the 'silver linings' that have been mentioned by Dem supporters for the long primary (50 state appearances, 50 state organizations) one is forgotten: It froze out third party candidates. You may forget how at the start of the year there was a LOT of speculation about Bloomberg, Dobbs, or whoever trying an independent run. What caused them to hesitate until it was too late is that they didn't know who they were going to run against. And running as the thrid party to an Obama/McCain ballot is a whole different game to running as a third party to a Clinton/McCain contest. I am fairly certain that if Hillary had scored her desired Feb 5th knockout we would have seen a serious third party candidate (Nader's third try does not count as serious)

[Chris Weigant - Huffpost Blogger]

DRaymond -

I don't see it as a Constitutional crisis, since in this case the Constitution spells out exactly what should be done. Now, the status of DC might be called a "crisis" but (like FL and MI for the Dems this year) that would only really happen if it's one vote were to change the outcome.

As for third-party challenges, you're right, most of them just melted away. Remember all the talk about Unity08 for instance? But Bob Barr (Libertarian Party) could actually influence the race. I've heard speculation that if he got the Ron Paul vote as well as the Libertarian vote -- in Georgia especially (Barr's home state) -- he could, if he got 5-10% of the vote, throw the state to Obama. Sounds like a longshot, to me personally, but hey, stranger things have happened.

-CW

[FearlessFreep]

"Nader's third try does not count as serious."

We shall see. Polls have him over 5%.

[marignymitch]

Mr Weigant:

You omitted the Diebold variable.

[jungpatawan]

Geee Zuss, Chris! Bite your tongue!

This should be nowhere near a tie. The current electoral map from this awesome site http://electoral-vote.com/ has Obama currently ahead 304 - 221. And if past performance is any judge, once he gets going someplace, Obama just closes gaps / widens leads. The Michigan map piece, for example, just switched from "Barely GOP" to "Barely Dem." Lees than three weeks ago, Obama trailed on the same map 272-242.

Unlike recent elections, where Republican ideologists erased early Democratic leads, McCain has no central theme or naturally energized base on which to anchor his "red" states.

Obama, on the other hand, is nailing down his base states and will play the entrire game on McCain's half of the field.

We're talking E.C. landslide.

JP

[CatfishJohn]

...exactly , and this trending is early before mccains self-evident dottering and failing neuronal synapses are more widely seen....not only wil the dems have the money advantage and the "new ideas" advantage over the spent and failed repub Bush III agenda that is essentiallya ll mccian is about, but they will be able to mobilize a literal all star cast of edwards, gore, strickland, biden, richardson, rendell and yes, hillary to get out there and score votes across demographics and issues....realistically, the entire upper midwest, witht he additon of ohio alone in conjucntion with new engalnd and the blue norteast will seal the deal with rlelable calif, oregon, and washignton...states like colorado and new mexico appear givens , whcih means missoouri, arkansas, and even virginia turning blue will prove extraneous icing on the cake...i for one am beginning to count these unhatched electoral chickens with confidence...hooray!!!

[Cathexis]

It may be interesting to speculate exotic scenarios, but let me officially and publically declare the following:

McCain does NOT have the support with which many seem to credit him and, come November, he will be spanked like a Republican Congressman on Fetish Night at the Mustang Ranch!

;-D

[mvy]

There is nothing in the U.S. Constitution that needs to be changed to have a national popular vote for President. The winner-take-all rule (awarding all of a state's electoral votes to the candidate who gets the most votes inside the state) is not in the U.S. Constitution. It is strictly a matter of state law. The winner-take-all rule was not the choice of the Founding Fathers. The winner-take-all rule was used by only 3 states in the nation's first presidential election in 1789. The fact that Maine and Nebraska currently award electoral votes by congressional district is another reminder that the Constitution left the matter of awarding electoral votes to the states. All the U.S. Constitution says is "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." The U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as "plenary" and "exclusive." A federal constitutional amendment is not needed to change state laws.

The National Popular Vote bill has been approved by 18 legislative chambers (one house in Colorado, Arkansas, Maine, North Carolina, Rhode Island, and Washington, and two houses in Maryland, Illinois, Hawaii, California, and Vermont), and enacted into law in Hawaii, Illinois, New Jersey, and Maryland. These states have 50 (19%) of the 270 electoral votes needed to bring this legislation into effect.

See www.NationalPopularVote.com

[ProudLiberalDan]

This IS exciting. The first step to a direct popular vote for President, like every other democracy on the planet, is the NPV bill reaching an electoral college majority.

We need a direct popular vote election with a runoff (either two-round a la France and Brazil, or ranked-choice a la Ireland and Australia) and we need it yesterday.

The day of giving spoiled citizens in less populous states greater say in electing a President than their population warrants MUST end. Less populous states find their protection in the US Senate. They neither warrant, need nor deserve greater say in electing the President. If that means the Presidential candidates campaign in Los Angeles, New York, Chicago and Dallas instead of Podunksville, that's great, because that is where the American people actually live. We are a metropolitan country, nor a rural one.

[mvy]

The real issue is not how well Obama or McCain might do in the closely divided battleground states, but that we shouldn't have battleground states and spectator states in the first place. Every vote in every state should be politically relevant in a presidential election. And, every vote should be equal. We should have a national popular vote for President in which the White House goes to the candidate who gets the most popular votes in all 50 states.

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC). The bill would take effect only when enacted by states possessing a majority of the electoral vote -- that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

Presidential candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. Candidates concentrate their attention on a handful of closely divided "battleground" states. Two-thirds of the visits and money are focused in just six states; 88% on 9 states, and 99% of the money goes to just 16 states. Two-thirds of the states and people are merely spectators to the presidential election.

See http://www.NationalPopularVote.com

[Chris Weigant - Huffpost Blogger]

mvy -

From other comments here, I wonder (out of sheer curiosity), does this plan address "faithless electors"? It had better, or else it could be torpedoed by the electors themselves.

Thanks for the link, though! The NPV folks are quite serious about their idea, and it has steadily been making progress in the statehouses across the country.

-CW

[thromulese]

Yes. It could happen. Little green people could land on the white house lawn too, but odds are incredibly stacked against such an event. And like this scenario, it is a total waste of space and energy to even discuss it.

Who cares?

Aren’t there enough REAL things to worry about without making up incredibly unlikely possibilities to ponder and agonize over?

Oh my god. What if the sun turns blue? Hey, it could happen.

[Cathexis]

If the sun turned blue, Republicans would scream to cut taxes and let the Free Market deal with any problems.

[Chris Weigant - Huffpost Blogger]

thromulese -

Little green people and Dr. Who's TARDIS carrying George Washington from the past? Man, the front lawn of the White House is starting to look pretty crowded...

-CW

[OrganizersWin]

If we actually counted real votes in America, Obama would win by a large margin, of not a complete landslide. This is also true, looking back on 2004. (2006 was stolen as well but noone cares) What is also true, is that if my Aunt had b***s she'd be my uncle. I live in PA, and the rigging here is insane. McCain couldn't win in PA, if we brought Carter back, and talked with his mouth full of peanuts the whole campaign. (Not a bad idea btw). When they talk of Ohio, it makes me sick. Another state that is SOLID BLUE, disguised as a swing state. At least with the huge dem. participation this time around, when they steal some districts it will look worse than normal. I think only 2 out of 5 can name the 3 branches of government, so I am barking up the idealist tree to be sure. Heck, half the dem voting public think Nader is the enemy, and Pelosi, Reid, Schumer, et al, are somehow good people. I think that the main focus should be on "election fraud", "impeachment", "3rd party voting", and "picketing the MSM".

Ask yourselves, when a "dem" congressman beat a "rep" in your district, you are happy. But if they don't do what you expect of them, where else can you run? Nowhere! And if someone more progressive challenges, they will be sued and slandered by the dem. party. Same story for decades now.

[DeadDogDemocrat]

Now it's time to get working on that article about faithless electors!

[peterg76]

The most important factor: would the House of Representatives be using Diebold voting machines?

[OrganizersWin]

I may be mistaken, but I believe in the given scenario, they would vote "telepathically", and the sitting Vice-President would appoint an "independent" vote tabulator.... unless there is a hurricane, of course. If this occurs, then the sitting President remains in office for an additional term.

[Pippen]

The tie scenario is alot more plausable than remote this time around. I don't think it'll happen but the chances for the tie to occurr are much higher than ever before.

[carof]

Isn't there a corresponding clause where the senate picks the vice president in case of a tie? That could end up with the president and vp from different parties.....

[Chris Weigant - Huffpost Blogger]

carof -

Yep. The way it works is that the House picks the Pres, the Senate picks the VP. Both of these happen whenever the electoral college is tied, or no candidate gets an outright majority. You're right -- it could have the effect of Pres/VP from different parties, but that used to happen every year before the "spoils" system was in place and a "ticket" from one party happened. The VP was the guy who got the 2nd-most votes in the EC.

Another fun fact -- if the House can't pick a Pres by Inaugural Day, and if the Senate can't pick a VP, then the House picks anyone it wants to as "Acting President" until they can agree. Scary concept!

-CW