Nate Silver has outlined the scenarios by which “the country’s worst nightmare” — but political pundits’ dream — of an Electoral College tie could take place. He notes that, as we get closer to the election without either candidate pulling away, the odds get greater.
The far most likely 269-269 scenario: “Barack Obama wins the Kerry states plus Iowa, New Mexico and Colorado, but loses New Hampshire.” Not only did this happen almost every time that there was a tie in his simulations but “we presently have Obama winning precisely the Kerry states plus Iowa, New Mexico and Colorado, so all that would be needed to make a tie occur is to flip New Hampshire back to McCain, and entirely reasonable possibility.”
The other plausible scenarios:
20 times: Obama wins Kerry States + IA + NM + NV. This once had seemed like the most plausible tie scenario, but it requires Obama to win Nevada while losing Colorado, and increasingly unlikely parlay.
3 Times: Obama wins Kerry States + IA + NM + WV. Functionally equivalent to the scenario above since West Virginia and Nevada each have 5 electoral votes.
2 Times: Obama wins Kerry States + IA + NM + CO + VA – MI. Michigan has moved slightly toward Obama in the post-convention polling while Virginia has remained stuck in place, making it less likely that the states would invert positions as this scenario requires.
1 Time: Obama Wins Kerry States + IA + NV + CO – NH. Obama winning Nevada while losing New Mexico now seems very unlikely.
The “fun” part is this: If, in fact, the race ends 269-269 (or no candidate gets 270 through some other miracle) then the race is decided according to the strange provisions of the 12th Amendment.
[I]f 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, 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. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.–The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Note that the election is not, as some media pundits have it, a one man, one vote affair in the House. Rather, each state votes as a delegation. How, precisely, that would work is unclear. Presumably, states with odd numbers of Representatives would give their votes to the candidate of the party which has more Members in the delegation. I haven’t the slightest idea, though, of how states with even numbers of representatives that are also evenly divided would vote.
The scenarios are far-fetched enough that I haven’t run the numbers of the possibilities. One thing not at all clear from the text of the Amendment is whether the decision would fall to the CURRENT House members or the NEXT Congress. The plain meaning of the word “immediately,” though, would suggest the former, since the current Congress would be in session at the point when the Electoral College deadlocked. The Constitution does not, however, specify the dates by which Congress would receive the ballots.
Note, too, that the dates listed in the Amendment have been superseded by the ratification of the 20th Amendment.
