10/23/2012 01:48 pm ET Updated Dec 23, 2012

Tie Goes to the Runner: Welcome to the Romney-Biden Administration

Thanks to Nate Silver and his blog, "FiveThirtyEight," for the New York Times, we are on notice of the elemental math that raises the specter of a tied Electoral College on November 7. What we've not thought through to, however, is what happens "the morning after the morning after" -- just what would such a result entail for the presidency, and the country? Maybe it's the logical outcome for a national polarized 50-50; maybe it's Murphy's Law writ large; maybe it's something altogether new. In any event, it bears some serious focus as the national and swing state polls draw ever closer in the final days of the campaign.

A 269-269 outcome is feasible in a number of hypothetical state-by-state outcomes that would not strain anyone's credulity. For example, let's focus on the "consensus" nine swing states: Colorado, Florida, Iowa, Nevada, North Carolina, Ohio, New Hampshire, Virginia and Wisconsin. We'll leave Pennsylvania and New Mexico with Obama, and Arizona with Romney until more evidence of a "swing" comes in.

If Obama were to win only Ohio, Wisconsin and New Hampshire, with Romney taking all the other six, we would have a 269-269 result in the national Electoral College vote. Same result happens if Obama wins only Colorado, Virginia and Wisconsin, or only Nevada, Ohio and Virginia, or just Colorado, Virginia and Wisconsin. None of these outcomes could today be classified as "freak" or "black swan" outcomes. Indeed, all of Team Obama's "firewall" strategies involve winning at least four states, assuming they don't win Florida (the biggest prize on the table with 29 electoral votes).

Even if the president won four states ex-Florida -- Nevada, Virginia, Wisconsin and New Hampshire -- he could yet face a tie with Romney if Maine's Second Congressional district went for Romney, because that state, like Nebraska, awards some of its electoral votes by district. The same thing could happen to Romney in certain scenarios if Nebraska's First District went for Obama, where he is running closer than the conservative state as a whole.

What happens next? According to the Twelfth Amendment to the Constitution, a tied Electoral College, which reports results to the new Congress early in January, shifts the presidential choice to the new House of Representatives, with each state's delegation as a whole casting one vote. While there have been past discussions that perhaps each delegation should vote as their state did on November 6, there is nothing binding the House members to do so. More likely the delegations will vote by party affiliation. In either case, however, Mr. Romney would most likely win handily, as his party is expected to continue its dominance in terms of control of state delegations, and any tie scenario involves him winning more total states than Obama.

Romney, therefore, can in a pinch simply "play for a tie" in the Electoral College because he has a virtually guaranteed win in "overtime." And the country would not really be in suspense about the outcome for two months (the "fiscal cliff" is already enough to give the stock market a late autumn fit).

There is, however, one complication with that scenario -- two, really. Historically, it comes under the heading of the so-called "faithless elector." What if, as has happened before, one of the generally unknown official "electors" chosen by their respective parties in each state to actually cast the electoral votes, decides to "go rogue" and vote for a candidate who did not win his or her state. There is no Constitutional prohibition against that; 24 states have passed laws that punish faithless electors, but only after the fact. Importantly, Nevada, one of the "swing" states, does not. There, one of the Republican electors, a Ron Paul supporter, has suggested that his vote would not go to Romney if he won the state. The same goes for one elector in Texas and one in Iowa, both states that could also be in Romney's electoral total in the event of a tie.

The question undoubtedly would arise whether the Paul-loyalist electors would seek to extract -- or respond to -- a "price" from Romney (for example, Ron Paul's advance approval of Romney's choice to replace Ben Bernanke as Chair of the Federal Reserve) in exchange for the electoral vote needed to break a tie, or even to confirm a narrow Romney victory. Such an alleged "corrupt bargain'" became a four-year issue that helped Andrew Jackson win in 1828, the presidency he thought he won with a plurality of electoral votes in 1824. With no one having an electoral majority, John Quincy Adams won in the House of Representatives with the votes of Henry Clay's supporters, whereupon Clay became his Secretary of State (then viewed as the natural stepping stone to the presidency).

Another factor that could give rise to a push to find a "faithless elector" in 2012 would be a case where President Obama won the popular vote by a significant margin yet the College was tied. One can imagine his supporters trying to find just one elector who would choose to "vote with the country." (The same could notionally happen with Romney, of course, but Obama has no chance in the House, while Romney is as close to a "shoe-in" there as imaginable. So he doesn't need a faithless elector to ultimately win in a tie.

The vice presidency is another matter entirely. There an Electoral College tie leads to a vote in the new Senate, with each Senator casting one vote, not by state. Because the parties may well come out of this year's election at 50-50 in the new Senate, we could find that the sitting vice president, Joe Biden, is in the position to cast the deciding vote for his own re-election, but it's not entirely clear.

The Twelfth Amendment merely states that "a majority of the whole number [of Senators] shall be necessary to a choice" of vice president -- it does not expressly confirm that this situation would come under the purview of Article I, Section 3, of the Constitution, which provides that the "Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

Assuming the Senate Parliamentarian ruled that he had a deciding vote in case of a Senate tie, one can imagine Biden would nonetheless come under seer pressure to "vote with the country" if the Romney-Ryan ticket had won the popular vote. Even if Obama-Biden got the majority of popular votes, in the event Romney was nevertheless elected by the House as president, Biden would feel intense pressure to break a Senate tie in favor of Ryan to prevent the spectacle of a "gridlocked'" administration to go along with a gridlocked Congress!