By Whit Ayres and Jon McHenry
Fast-forward to the morning of Nov. 7. The votes are in and the unthinkable has happened. The Electoral College is tied 269-269. A deadlocked presidential election.
Here’s one way it could happen: In addition to the core Republican states, Mitt Romney pulls out victories in Florida, North Carolina, Ohio, Nevada and Wisconsin, the latter helped by Paul Ryan’s presence on the ticket. In addition to the core Democratic states, President Barack Obama wins Colorado, Iowa, Michigan, New Hampshire, New Mexico, Pennsylvania and Virginia. (This scenario assumes that all of Nebraska’s Electoral College votes go to Romney, and all of Maine’s Electoral College votes go to Obama – both states allocate a portion of their votes to winners of the congressional districts).
Before members of the Electoral College cast their votes on Dec. 17, a tie places in the hands of each one of the 538 electors the power to select the next president of the United States. Only one faithless elector switching from the candidate to whom they were pledged before the election to his opponent could produce a 270-268 count in the Electoral College, thereby electing the next president.
Yes, some states bind their electors by law to vote for the winner of that state’s popular vote (although the constitutionality of those laws is not clear). And yes, most electors are ardent party activists for whom voting for the opposing party’s candidate would be unthinkable. And yes, an elector betraying his or her party would go down in history alongside Brutus, Judas Iscariot and Benedict Arnold. But of 538 electors, might there not be one who could be induced to switch sides to pick the next president? Ambassador to Fiji, anyone?
If all 538 electors hold to their pledges and the tie remains, the 12th Amendment to the U.S. Constitution provides that the current House of Representatives (not the newly elected House) selects the next president. Votes are counted on a state-by-state basis, with each state casting one vote regardless of size. Here the outcome of the 2010 election becomes critical, since Republicans took control of 33 state delegations and the Democrats were reduced to 17 (including the District of Columbia), with Minnesota evenly divided. That reversed the 33-16 state delegation control by the Democrats in the prior Congress.
In other words, the current House of Representatives would be almost guaranteed to select Mitt Romney as the next president of the United States in event of an Electoral College tie.
The current Senate would then select the vice president, with each senator casting one vote, and a majority of all senators required for election. Given the current Democratic control of the Senate, Joe Biden would probably continue as vice president in a Romney administration.
From the perspective of public perception, it will not be a problem if Romney wins the popular vote nationally and the House selects him as president. Romney might not appreciate having Biden as his sidekick instead of Ryan, but the Republic would survive.
But what if Obama wins the popular vote, and the Republican House installs the Republican candidate in the White House to replace the first African-American president over the preference of a majority of American voters? Can you say “social unrest?” You can almost hear the cry from the left: “Republicans steal another presidential election!” Just what the political system needs after the trauma of Bush v. Gore a dozen years ago.
The answer, of course, is for one of the candidates to win a clear Electoral College majority. We should all hope for that outcome, because the alternative could be a nightmare for our political system.
Whit Ayres is president and Jon McHenry is vice president of North Star Opinion Research, a Republican polling firm located in Alexandria, Va.