Romney/Biden and Other Electoral Weirdness

[Antilogic]

Based on some comments from pretty far back in the Chamberpot electoral map thread, I began looking for some bizarre cases where the two major party candidates would tie at 269 EVs and weird stuff would happen.

So the map that does this is (ignore the shading since it's from another map I have stored, just focus on the colors):


In this case, either candidate could win the single Congressional district from Nebraska or Maine they lost and win by 270-268, a margin only bested in the 1876 election where Hayes beat out Tilden with 185-184.

However, what would happen if the race remained a tie? Fortunately, both ABCNews and others have taken a look at what the Constitution says here:

The rules are all outlined in the 12th Amendment to Constitution. Here’s how it would work:

1) In the House vote for President, each state delegation gets a single vote. So California, with 53 Representatives (majority of them Democrats), would likely cast its single vote for Obama. South Dakota with just one Representative (Republican), would get equal weight and likely cast its vote for Romney, and so on.

All told, in the current House, Republicans have majority control of 33 state delegations; Democrats control 14 and 3 are evenly divided. Even if the Democrats win control of the House, the Republicans would almost certainly still control a majority of the state delegations. Bottom line: Romney wins.

2) In the Senate vote for Vice President, each Senator gets a single vote. If Democrats keep control of the Senate, Biden would likely win (unless somebody crosses party lines).

So the states vote by block in the House (see excerpt below), and presumably they will vote along partisan lines. Even if they are held to how their states voted in the presidential election (which they are free to ignore), Romney wins 29-21 (DC doesn't count). But this isn't the end of the madness:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- 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. [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 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.
(Source)

Huge block of text, I know. They can only vote for the top 3 candidates that receive electoral votes. If a faithless elector (or several) casts an electoral vote for anyone besides the major two candidates that still results in a lack of a majority, they could be president! One faithless elector could pick any other Republican they would prefer over Mitt Romney, and if the House Republican delegation voted for him in block, he could be the next president. Same is theoretically possible for the Democrats, but since they have fewer states controlled, it won't matter.

Maddow (her website uses silly Flash stuff, can't directly link to the "Romney/Biden 2012 (!)" video segment) seems to imply that if the House does not make a decision, then John Boehner becomes the President. My reading of the 12th Amendment excerpt above seems to indicate that Vice-President Biden begins acting as President Biden, I cannot find her justification for a President Boehner. But that's because it's superseded by the 3rd section of 20th Amendment

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

Section 1.
The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.
The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.
If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.
The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.
Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

So Congress gives itself the right to name the President and Vice-President (at least temporarily), and I think the law on the books currently gives it to the Speaker of the House. Haven't been able to dig that up yet.

So who's the vice president? Well, as it turns out, the President doesn't name the Vice President, but according to the 12th, the Senate does! If the Republicans control the Senate, they will likely support their party's presidential nominee, assuming no funny business as described above with faithless electors. However, the Democrats are becoming more favored to hold their seats in Ohio and Missouri and take Scott Brown's seat in Massachusetts, so it is a strong possibility they will control the Senate. In that case, they will likely vote for their candidate, Joe Biden, as Vice President. So we have a President Romney, Vice President Biden administration. It'll be Adams/Jefferson all over again.

But wait, there's more! If the Senate is a tie, and nobody breaks rank, then the current Vice President casts the tie-breaking vote for who gets to be Vice President. So Joe Biden could cast a single vote for himself to become Vice President.

Anyone else doubt the supreme wisdom of the founding fathers and their twice-amended electoral college system?

 

[kochman]

Interesting!
In regards to the VP selection... the Senate votes.
Wouldn't it be the current sitting Senate as of 6 Nov? Meaning, Biden regardless?

And, no, this in no way shakes the good standing of the electoral college.

 

[Antilogic]

I believe it is the new Senate that votes, but the old Vice President casts the tie-breaker (since there is not a new VP yet). This is due to the different inauguration dates for the new Congress (Jan. 3rd), and the presidency (Jan. 20th).

 

[KMRblue1027]

I think it's the current set of senators that vote for VP so even if the vote ties Biden would vote for himself.

 

[Leoreth]

Very interesting, thanks for posting this.

Why not let the popular vote decide in case of an EC tie? It seems like the obvious tie-breaker. Or is actual democracy not allowed in this process?

 

[Joecoolyo]

Why not let the popular vote decide in case of an EC tie? It seems like the obvious tie-breaker. Or is actual democracy not allowed in this process?

Its not the lack of democracy, its that the founders really believed in checks and balances, and I mean they really did. This entire process is the result of checking and balancing government so no one part ever became too powerful. That was one of the original purposes of the whole EC in the first place.

 

[JohnRM]

This is all irrelevant, because I haven't seen any indication whatever that Romney has any chance in Iowa. Also, if the President loses Iowa, then he will almost certainly lose New Hampshire and Ohio. A tie, while technically possible, is virtually impossible.

 

[Takhisis]

269-269? Don't you have an odd number of electors?

 

[emzie]

269-269? Don't you have an odd number of electors?

Not since we allowed DC to vote.

 

[Takhisis]

I thought they couldn't vote… and why didn't someone add a number of electors that didn't allow for such a thing to happen?

 

[emzie]

I thought they couldn't vote… and why didn't someone add a number of electors that didn't allow for such a thing to happen?

They can vote for President. They don't have representation in the legislative branch (no voting congress rep / and no senators). Their vote for President is based on if they were a state though.

As to why they allow for ties, because there's a tie breaking procedure and people think it's unlikely.

 

[Antilogic]

I think it's the current set of senators that vote for VP so even if the vote ties Biden would vote for himself.

The electoral votes are formally counted in Congress on January 6th, which is after the new Congress is seated.

This is all irrelevant, because I haven't seen any indication whatever that Romney has any chance in Iowa. Also, if the President loses Iowa, then he will almost certainly lose New Hampshire and Ohio. A tie, while technically possible, is virtually impossible.

Given that the race is closer now and no candidate has opened up a decisive lead, I figured it was worth posting. Obama's position does seem to be quite stable in Ohio, Iowa, and Wisconsin, though--far more stable than his position in other swing states.



From the 18th to 19th century, the number of electors increased with each census since it is pegged to the size of Congress (each state receives 1 EV for each senator and representative they have in Congress). However, since the House was restricted to 435 Representatives in the early part of the 20th century, the total number of electoral votes was fixed at 531 to 535 (+96 to +100 for the Senators). Since the addition of DC, the total is 538 (+3 for DC on the 50-state total). Strictly speaking, a majority is required, so through faithless electors or having 3+ candidates that all perform well will still trigger this tie-breaking procedure.

Regarding DC: The 23rd Amendment gives DC a minimal number of electoral votes (it cannot have more than the least populous state, which effectively means it receives 3 EVs).

 

[say1988]

269-269? Don't you have an odd number of electors?

Why bother?

1) This precedures applie if no candidate gets a majority whether it is tied or not
3) You always have the potential for a tie with any vote going to a third candidate

 

[Leoreth]

Its not the lack of democracy, its that the founders really believed in checks and balances, and I mean they really did. This entire process is the result of checking and balancing government so no one part ever became too powerful. That was one of the original purposes of the whole EC in the first place.

I don't see with creating a system deliberately designed to put someone into office who might not be the person the majority of citizens wanted (the EC is bad enough, but let's not talk about that, but using congressional delegations as a tie-breaker is just insane) helps to check and balance the powers of said person once he is in office

 

[kochman]

I don't see with creating a system deliberately designed to put someone into office who might not be the person the majority of citizens wanted (the EC is bad enough, but let's not talk about that, but using congressional delegations as a tie-breaker is just insane) helps to check and balance the powers of said person once he is in office

We are a representative republic that allows all adult citizens to vote...
We are not a democracy, in the strict sense of the term.

I rather like it that way.

 

[Joecoolyo]

I don't see with creating a system deliberately designed to put someone into office who might not be the person the majority of citizens wanted (the EC is bad enough, but let's not talk about that, but using congressional delegations as a tie-breaker is just insane) helps to check and balance the powers of said person once he is in office

Two different checks and balance system. There's a check and balance system of powers once the person gets into government, and there's a check and balance system for getting him into government.

Its messy, and I'm not particularly fond of it, but that's that basic reasoning behind it.

 

[AlpsStranger]

Most of the 269-269 patterns don't make good sense, fortunately.

Love the result, or hate the result, we're gonna have a result.

 

[Antilogic]

I don't see with creating a system deliberately designed to put someone into office who might not be the person the majority of citizens wanted (the EC is bad enough, but let's not talk about that, but using congressional delegations as a tie-breaker is just insane) helps to check and balance the powers of said person once he is in office

We are a representative republic that allows all adult citizens to vote...
We are not a democracy, in the strict sense of the term.

I rather like it that way.

By that definition, just about every modern democratic, federal, and parliamentary system is also a representative republic.

The answer to this is not that we elect representatives, but rather that we preserve the fiction that we are a league of semi-independent states and the states, not the people in them, are electing the chief executive. The electoral college specifically weights the states based on Congress, the states are voting as blocks in the tie-breaker instead of the representatives voting individually, etc.

Most of the 269-269 patterns don't make good sense, fortunately.

Love the result, or hate the result, we're gonna have a result.

The pattern I've outlined in the OP is at least plausible given that it is a result of the distribution of the tossup states. I'm not making Texas Democratic or Massachusetts Republican or anything else that is strictly impossible.

 

[kochman]

By that definition, just about every modern democratic, federal, and parliamentary system is also a representative republic.

I didn't give a definition, I straightened out this concept of us being a true democracy.

 

[Antilogic]

I didn't give a definition, I straightened out this concept of us being a true democracy.

It's a moot point because nobody is living in a true democracy by that definition.