10/15/2012 05:44 pm ET Updated Oct 16, 2012

An Electoral College Tie Would Be A Hilarious Disaster

At a certain point during the home stretch of an election, attention tends to drift from the big national head-to-head polls to the more granular polling snapshots of the swing states. Perhaps we should not do this, argues Jonathan Bernstein. But eventually, we all give in, because we want to game out what might happen in the electoral college. And in a tight race such as the one that's unfolding between President Barack Obama and Republican nominee Mitt Romney, eventually we start wondering: hey, what about an electoral college tie? Oh, yes. That would be a pretty fitting end to this election, wouldn't it?

A few weeks ago, New York Times polling guru Nate Silver basically trolled the world of political reporters with a post titled, "New Polls Raise Chance of Electoral College Tie." Ermahgerd, right? It depends on how you look at it, sure! For instance, Silver's model found that the odds of a tie in the Electoral College had "roughly doubled from a few weeks ago." But, you know what they say: lies, damn lies, statistics. The rest of that sentence informs "...when the chances had been hovering at about 0.3 percent instead." So, now they had increased to 0.6 percent. If I show up at a DC United game, the odds that I will start in goal probably go up from 0.3 to 0.6 percent, too. Don't worry though: No one in their right mind wants to see me start in goal for the DC United, including me.

But there is a heavy dose of "electoral college tie" intrigue just because of the way the swing state battleground is stacking up. Back on August 23, Ezra Klein took a look at First Read's analysis of the swing states that were in play and the way it ranked them in terms of likelihood they would move from Obama's 2008 column to Romney's 2012 slate of electoral college wins:

1. North Carolina
2. Iowa
3. Florida
4. Colorado
5. Virginia
6. Nevada
7. Ohio
8. Wisconsin
9. New Hampshire

Looking at it now, that still, arguably, feels right. Ohio is still touted as the state where Obama's "firewall" begins, with New Hampshire and Wisconsin on the other side of it. Most have considered Iowa, lately, on Obama's side of the wall as well, but polling there has not been conducted as robustly as it has in other swing states. So, if the state ends up in Romney's hands, the observation that First Read made in August becomes interesting:

What’s striking about this list is if you give Romney the Top 4 (NC, IA, FL, and CO) that only gets him to 250 electoral votes. And if you give him the next two on the list (VA and NV), he’s still one short of 270 (bringing us to that 269-269 tie). That means he has to put one of Ohio, Wisconsin, or New Hampshire into the mix to get past 270.

Emphasis mine, to illustrate how the long shot chance of an electoral college tie suddenly looks plausible.

Now, several factors help break against the possibility of a deadlock. In Nebraska and Maine, the electoral votes are awarded to the winners of the states' congressional districts. These states don't often end up dividing their electoral votes between competitors, but in 2008 Obama stole an electoral vote from Nebraska. That's not, however, seen as a likely outcome in this election.

Another factor that guards against the possibility of an electoral college tie are "faithless electors" -- that is, electors who show up to vote in the Electoral College and unexpectedly flip the vote they are expected to make. This, also, does not happen that often -- indeed, many states now have laws forbidding it. (You can read a concise history of faithless electors in American politics here.) But the campaign season has already featured a story about some possible faithless electors in the 2012 mix. As you might expect, Ron Paul is involved:

At least three Republican electors say they may not support their party’s presidential ticket when the Electoral College meets in December to formally elect the new president, escalating tensions within the GOP and adding a fresh layer of intrigue to the final weeks of the White House race.

The electors – all are supporters of former GOP presidential candidate Ron Paul – told The Associated Press they are exploring options should Mitt Romney win their states. They expressed frustration at how Republican leaders have worked to suppress Paul’s conservative movement and his legion of loyal supporters.

“They’ve never given Ron Paul a fair shot, and I’m disgusted with that. I’d like to show them how disgusted I am,” said Melinda Wadsley, an Iowa mother of three who was selected a Republican elector earlier this year. She said she believes Paul is the better choice and noted that the Electoral College was founded with the idea that electors wouldn’t just mimic the popular vote.

There is no way to determine if any of the people who showed up in that story are really intending to carry out this plan, so I wouldn't put too much stock in it. (In fact, the original story from the Star-Tribune seems to no longer exist.) But it could happen, maybe to Mitt Romney, maybe to Barack Obama. It would end someone's presidential hopes, but it would spare us the misery of an electoral college tie. (Although to be fair, faithless electors might just as conceivably deny a candidate the requisite 270-vote simple majority and plunge us into the same situation that we'd face in the event of a tie anyway.)

And it would be miserable, mark my words! Per the Twelfth Amendment to the U.S. Constitution, here is how electoral college ties are resolved, for all of you who thus far have never had to worry about it:

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

The short version is that the delegations of each state will meet and vote, with the winner being the person who earns the most votes in each state delegation. From there, whoever has the most states wins, and becomes president. And I'll remind you that it will be the new House of Representatives, voted into office this November that will make the choice.

Now in the case of a tie, the scenarios that will unfold all favor Mitt Romney -- the GOP will, in all likelihood, enjoy a raw majority and the ability to vote by state delegations, in this fashion, to elect Romney to the White House. But there will be all sorts of miserable pain to endure! What if you are a Republican, who won office in a district that voted for Obama? Or a Democrat who did the same in a district that went for Romney? It's been known to happen, and if it comes to that, those representatives will have to choose who they will tick off -- their party, or the voters in their district. It seems pretty certain that they will mostly align themselves by party, but who knows? You could get someone with idiosyncratic principles in the mix.

Regardless, it's a choice that none of them want to have to make if they can avoid it. (In general, members of the House lack the courage to make any difficult choices, which is why we ended up with a super committee.)

But your reasons to question the mental fitness of the Founders do not end there. For some reason, they decided that when it comes to electing a vice president in the case of an electoral college tie, it just would have been too easy to let the president's chosen running mate assume office. So in the case of the vice president, a similar vote is conducted in the Senate. And,as Philip Klein related last week, this is where things get really FUBAR:

Given that it’s quite possible (arguably likely) that Democrats will retain control of the Senate, it means that they could vote for Biden to remain on as VP, even if the House elects Romney as president.

In theory, if the election outcome is a 50-50 Senate, Biden could be the tie-breaking vote for himself. This would allow him to remain on as VP and for the Democrats to retain effective control of the Senate. It would also usher in the Romney-Biden administration.

And from there, Capitol Hill might as well begin every day with Hank Williams Jr. singing, "Are you ready for some nonsense!" If you want to imagine what a Romney-Biden administration would be like, here's how it would go:

1. Romney does a thing, or says a thing, or makes some decision.

2. Every reporter immediately seeks out a reaction from Joe Biden, who probably has his own opinion on whatever thing, statement or decision Romney makes.

3. Forever and ever, punctuated where applicable by Biden breaking Senate ties.

It would probably be the most dysfunctional government in human history, with Vice President Biden essentially running an Avignon Papacy from Number One Observatory Circle. It would probably be hilarious to watch, but also awful. (Though Thomas Friedman will write a hundred columns about the tremendous opportunity for "bipartisan civility" that America has just been handed.)

So, I'm not sure if this is an outcome you want to root for or against, with tears and crossed fingers. But doesn't it sort of seem like it's the outcome we deserve, somehow?

Clarification: Language has been added to the article to expand on the role that faithless electors could play in the presidential election.

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