What Happens If The Electoral College Is Deadlocked?

If you thought the 2000 presidential election was a mess and that Bush v. Gore was a political knife fight masquerading as justice, ponder this: What would happen if the upcoming campaign ended in a tie?

The political landscape of 2012 and the Electoral College system, which was designed in 1787, make this a real possibility. It happened once, in 1800, when Thomas Jefferson and Aaron Burr each received 73 votes. (Incumbent president John Adams came in third.)

As far back as December 2010, New York magazine proposed 16 ways the election could end in a tie. Now that we’ve reached the intermission between presidential primaries and the general election, let’s consider one of the several plausible ways the 2012 campaign could end indecisively.

Using 270towin.com, it is easy to build a believable scenario. For mine, I only assigned swing states; leaving the states that tilt strongly Republican or Democrat alone gives President Obama 196 electoral votes and Mitt Romney 181, with 161 votes up for grabs. I gave Virginia, Iowa, Colorado and New Mexico to Obama. He won all four in 2008, and it is reasonable to assume he could hold on to them. Those wins would yield an additional 33 electoral votes. However, I assigned Ohio, North Carolina, Florida and Nevada to Romney. These states would collectively give 68 more votes to Romney. Maine and Nebraska might split their electoral votes, but for this exercise, I left their votes as blocks, Democrat and Republican respectively. This brings us to 269 votes per candidate.

The 12th Amendment describes what would come next. The pertinent section reads:

“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.”

In other words, the members of the House of Representatives from each state would collectively cast their state’s ballot to choose the next president. It is safe to assume that the representatives will vote along party lines. This situation currently favors Romney, because 33 state delegations currently have a Republican majority, against 16 dominated by Democrats. (Minnesota is split 4-4.)

But a Romney victory in case of a tie is not assured, because the current Congress will not make the decision. The political calendar dictates that it will be the next Congress. Though we will probably know on Nov. 4 how states will award their electoral votes (Florida’s experience in 2000 makes me hedge even this bet), we must wait for the electors to meet on Dec. 17 to cast their votes. Congress will not tally these votes until Jan. 6, at which time a winner, or the lack of one, will be formally recognized.

The new Congress will have taken office on Jan. 3, so if the presidential election ends in a tie, it will be the newly elected House of Representatives that will vote on the next president. Democrats need to capture majorities in 10 states currently dominated by Republicans (or nine plus Minnesota) to put Obama over the top. This is a tall order, especially since redistricting has given Republicans an edge in many states this year. But many voters hold neither Congress itself nor the Republican Party in very high esteem right now. The possibility of a throw-the-bums-out movement in this year’s House races is what gives Democrats at least a faint hope of prevailing in an Electoral College deadlock.

Here is another point to ponder: What would you think of President Romney serving concurrently with re-elected Vice President Joe Biden?

If no vice presidential candidate wins an Electoral College majority, the Senate will choose the new vice president, but the senators will vote individually, not state-by-state. The current Senate configuration has 51 Democrats, 2 independents who caucus with the Democrats, and 47 Republicans – a formula that would probably keep Biden in office even if Obama loses in the House. But enough seats are up for grabs in the upcoming Senate elections that Republicans could capture a majority in that house too, which would be good news for Romney’s as-yet-unidentified running mate.

I am neither defending nor attacking the Electoral College. Like the Senate itself, its role is to enhance the influence of small, rural states at the expense of more populous places. The Electoral College is part of the system, just like early primaries in Iowa and New Hampshire, and it simply is not going away any time soon.

I have been watching presidential elections since 1968, and I can only think of two that I would describe as boring. Those were the re-elections of Ronald Reagan in 1984 and Bill Clinton in 1996. Both ran when the economy was expanding smartly and the country was at peace, and the results of both campaigns were foregone conclusions long before the votes were counted.

Obama can only dream of such a race. He might win or he might not, but this year’s contest is certainly going to hold our attention.

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About Larry M. Elkin 564 Articles

Affiliation: Palisades Hudson Financial Group

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.

Visit: Palisades Hudson

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