It's not as crazy as it sounds. But what happens next is.
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Today’s read: 10 minutes.
Over the last few months, every conceivable nightmare scenario has been combed over by the political punditry class: What happens if we can’t vote in person because of COVID-19? What happens if we don’t know who won the election for weeks or months? What happens if millions of mail-in votes are thrown out? What happens if Donald Trump doesn’t leave the White House? What if Joe Biden doesn’t concede the election? What if the Supreme Court has to decide the winner? What if Trump or Biden dies of coronavirus?
Less talked about, though, and perhaps just as plausible as each of these other scenarios, is the prospect of something that would send us into far more uncharted territory: an electoral college tie.
FiveThirtyEight says the chance of neither Biden nor Trump getting to 270 electoral college votes is less than 1 in 100, which is about the same odds it has for Trump winning in a landslide or the map staying the same as it was in 2016. Far from being out of the question, though, is that if there was ever an election map that lent itself to the chance of a tie, this year’s map might be it. Joe Biden’s strength in the national polls is hampered by Trump’s ability to stay alive in many of the crucial swing states that matter, which means the potential for them to split battleground states is legitimate. And that’s key to the chances of a tie happening.
What’s even more interesting than the tie itself, though, is what the U.S. constitution says to do in the event of a tie, and all the things it leaves out about how to come to a resolution. While the general contours have been laid out, there is so much uncertainty and so many variables that if we were to have an electoral college tie, it would almost certainly set off a chain of events that even the best constitutional experts struggle to predict.
How it could happen.
First, let’s set the stage.
To win a presidential election, a candidate has to win 270 of the 538 electoral college votes. In 48 of the 50 U.S. states, whichever candidate wins the popular vote gets all of that state’s electoral college votes. In two states — Maine and Nebraska — two electoral college votes are awarded to the popular vote winner and then the others are given out based on the winner of each Congressional district. Nebraska has five electoral college votes (two for the popular vote and one for each of its three Congressional districts) and Maine has four electoral college votes (two for the popular vote and one for each of its two Congressional districts). Keeping these states in mind is key.
Below, you can see how the map breaks down right now based on the “2020 consensus,” or an average drawn from a few national polls. In it, you’ll see Joe Biden and Kamala Harris are already past the 270 total threshold because of Biden’s polling lead in some crucial states.
You can also take note of the numbers in each state and how many electoral college points every state is worth (California, with 55, is the highest. Montana, Vermont, Delaware, Alaska and Washington D.C., with 3 each, are the lowest). Dark blue represents very likely Democratic states, and dark red represents very likely Republican states. States with less certain outcomes are represented by lighter shades of blue or red, and gold is considered a toss-up. You’ll notice that just 183 electoral college votes are rock-solid Democrat while just 88 are rock-solid Republican. 91 electoral college votes are considered complete toss-ups, and another 110 are just barely favoring Democrats or Republicans.
First, the possibilities of a tie are numerous: Mathematically, 270towin.com came up with 64 plausible scenarios where the battleground states split in a way that both Trump and Biden are left with 269 electoral college votes. One of the more likely scenarios, in my mind, would be if Trump were to win Pennsylvania, Wisconsin, Florida and Minnesota while losing Michigan, North Carolina and Arizona. Here is what that would look like:
There are a number of similar scenarios, where these states are interchangeable, that could all end up in a perfect 269-269 tie. In one particularly mind-blowing outcome, and perhaps most likely of all, is that Trump could essentially run the same map he did in 2016, except win Minnesota, lose Arizona and lose North Carolina, which would send the whole election down to the two states that give out their votes proportionally: Nebraska and Maine.
Nate Silver, the famous pollster, put together this map:
In the event this scenario plays out, the entire election could come down to one district in Nebraska. Nebraska, like Maine, uses the “congressional district method.” That means it gives two electoral college votes to the popular vote winner in the state, and then gives one electoral vote to the winners of each Congressional district. In Nebraska, there are three Congressional districts. Two are basically locked up to be red, but the third — which surrounds the city of Omaha — was won by Barack Obama in 2008. In the map above, Biden winning this district again could get him to 270 and means he’d be the next president. But if Trump won it again, as he did in 2016, it would mean the final electoral vote goes to him and the election ends in a 269-269 tie.
So, how is the 2nd Congressional district in Nebraska looking? Right now, the Cook Political Report has it rated as a “toss-up.”
Then what?
Working under the assumption that an Electoral College dead heat looks possible this year, the most fascinating thing about a tie is what we do if it happens.
First, it’s important to understand how the president is actually selected. Usually, the certification of electoral votes is done by the House and Senate the day after the new Congress is sworn in. This year, that will happen on January 3rd. And in most years, we know who the House and Senate are going to certify because we know who won each state’s electoral college votes. But in the event of a tie, the Constitution stipulates that the newly-elected House of Representatives would choose the next president.
If you’re a Democrat, you may have just gotten excited. Democrats have a 236-200 majority in the House, with one independent and four vacant seats. Not so fast, though. When the Constitution says the House of Representatives would choose the next president, it specifies that House state delegations would choose the next president. That means each state gets one vote — and each state’s delegation is determined by whichever party has the majority of representatives in that state.
Right now, House Republicans have 26 state delegations to the Democrats’ 23 (Pennsylvania is tied). To become president in the event of a tie, a candidate needs a simple majority of the state delegations, which means — assuming that Republican delegations all vote for him and that the current House makeup remains — Trump would eek out a victory in the event of an Electoral College tie.
For those of you who have qualms about the electoral college more generally, and feel that we should select the president by popular vote, this may seem particularly unfair. The set-up, as is, gives Wyoming’s state delegation (with a single Republican representative) the same number of tie-breaking votes as California (which has 53 seats in the House — currently 45 Democrats, 7 Republicans, and one vacancy). It also leaves Washington D.C. out of the process, because it has three electoral college votes but gets no state delegation vote to help break an Electoral College tie.
And, again, the votes will be cast by the new Congress, not this Congress. That’s actually more unfortunate news for Democrats, as the polling consensus is that in a close election, Republicans would keep their number of state delegations or even increase it by one or two states.
If you think that’s nutty, though, take a bite of this: while state delegations from the House select the president, it’s the members of the Senate who separately select the vice president. That means there is a possible outcome where, in the event of a tie, the Senate selects a vice president from one party and the House selects a president from another. It may seem unlikely, given that Republicans should have majorities both in state delegations and in the Senate, but it’s constitutionally possible. And it would only take a few moderate Republicans jumping ship to split the ticket.
While a tie has never happened before, the House has had to resolve a presidential race on two occasions. In 1824, the most recent, there were four well-known candidates running for office and none of them received the electoral college majority needed to become president. In that election, 131 electoral college votes of the then 261 possible were needed to win. Here is the breakdown of how the votes happened, according to History.com:
Andrew Jackson of Tennessee won 99 electoral and 153,544 popular votes; John Quincy Adams–the son of John Adams, the second president of the United States–received 84 electoral and 108,740 popular votes; Secretary of State William H. Crawford, who had suffered a stroke before the election, received 41 electoral votes; and Representative Henry Clay of Kentucky won 37 electoral votes.
What happened next is infamous: Henry Clay, who had been part of a coalition in Congress alongside John Adams, threw his support and votes to Adams. The House then picked Adams to be president, and Adams selected Clay to a top cabinet post — which resulted in years of bitterness and accusations of a corrupt agreement. In fact, it became known as the “Corrupt Bargain.”
Jackson’s supporters in Congress became known as the Democratic party, and the coalition Clay and Adams formed became known as National Republicans, though each has splintered and evolved since then to bring us to our current two-party system split.
House implications.
The possibility of a tie doesn’t just ramp up the importance of House races in Nebraska and Maine, which split their electoral college votes. It also makes House races that could sway the state delegations incredibly valuable. Imagine for a second that we work from the current situation, where the state delegation in Pennsylvania is tied 9-9. That means there are 26 Republican state delegations, 23 Democratic state delegations and one uncommitted vote because of the tie in Pennsylvania.
In that format, if there were an electoral college tie, Trump would almost certainly become president. To get elected, he only needs a majority — which means 26 House delegations.
But consider this: In Kansas, there are four representatives, three Republicans and one Democrat. So if Democrats flipped the 2nd District in Kansas blue, which is considered a toss-up right now, their state delegation would be a dead heat, 2-2. This means Kansas could be taken off the board as a tie breaking vote for Trump (state delegations who can’t agree don’t get a vote). Now we’re at 25-23, with two states (Pennsylvania and Kansas) in a tie, and no president. In other words: Trump would be short of the 26 state delegations if everything stayed the same and Democrats flipped one district in Kansas.
From a tie breaking perspective, this means it’s actually more important for Democrats to win Kansas’s 2nd District than it is for them to flip Pennsylvania’s 10th district, which would break the Pennsylvania tie, give Democrats another state delegation, but still result in a Trump presidency, as he’d have a 26-24 state delegation advantage.
And it’s not just Kansas. In Florida, there are 27 representatives, 14 of whom are Republican and 13 Democratic. That means if Democrats flip one seat blue there, they suddenly have the majority and control the Florida state delegation, too. That could put us at 24-24, with two ties, and no tie breaking vote in the House for president. Different scenarios similar to this could play out across the country. Take this, from The Atlantic:
“In several of the states, the majority is slim, and if a single congressional seat changes hands, it could change the majority or create a deadlock. That’s true of Republican states such as Florida, whose delegation splits 14–13, and Wisconsin, 5–3; it’s also true of Democratic ones such as Colorado, now 4–3; Arizona, 5–4; Minnesota, 5–3; and Iowa, 3–1. Then there are states with a single member, such as Montana and Alaska, with one Republican apiece, and states with just two representatives, such as Hawaii, New Hampshire, and Maine, where one switch could create a deadlock.”
Oh, and get this: In Alaska, an independent just won the Democratic primary. Right now, the sole representative in Alaska is a Republican. But if the independent who just won the Democratic primary was to unseat him, we’d have a complete wild card state that could flip the state delegation balance from red to blue. The entire election could, conceivably, come down to who independent House Rep. Alyse Galvin from Alaska wants as president.
It gets weirder…
I don’t know if you’ve heard, but the election results might be delayed this year. That’s because millions of people are expected to vote by mail, which means it will take time to tally the results and — in all likelihood — will result in several House and Senate races being challenged across the country. Basically any time there is a tight race, a recount follows, and this year will be especially fraught because of how many people are mailing their votes in and how often mail-in votes are thrown out.
Which brings me to another level of weirdness we could get into with very little imagination.
Let’s assume for a moment that the election ends in one of the 64 scenarios laid out by 270towin.com where there is a 269-269 tie. Let’s also assume that the state delegation race, as I just laid out, will end up being very close. The process for choosing the president is that each House delegation votes until there is a majority — or 26 delegations choose the same president.
But if Kansas and Pennsylvania are caught up in a delegation tie, we’d be short of the 26 necessary delegations for Trump to become president. In that case, the delegations are expected to start voting on January 3rd when the new Congress reconvenes and keep voting until a tie is broken and a majority is reached. But the electoral college votes are supposed to be certified on January 6th, and the president is supposed to be inaugurated on January 20th. If there’s no president selected by the House, then the acting vice president assumes the position of acting president.
So who, then, becomes vice president? In all likelihood, the Senate will still be controlled by Republicans, which means they would almost certainly pick Mike Pence — the Republican vice president on the ticket — as their vice president. And that means Pence would become acting president until the House could resolve the election.
You might be wondering: what if the Senate can’t agree on Pence? Or what if Senate races aren’t decided because of delayed ballots or challenged elections? Or what if the Senate has a 50-50 tied vote?
Right now, Republicans have control of the Senate. But given current polling models, there are about 10 toss-ups in the 100-person Senate for the 2020 election. That means 45 likely Democrats, 45 likely Republicans, and 10 in the air. Based on current polling, the Senate would end up being a 51-47 Republican advantage, with two independents who tend to caucus with Democrats. That probably means a 51-49 vote for Pence. But what happens if someone like Republican Mitt Romney jumps ship on a vote for Trump?
Now, we’re again in uncharted territory. Trump and Pence’s terms run until noon on January 20th. That means, until then, Pence is still the vice president and still oversees the Senate. Typically, if there is a tie in the Senate, a tiebreaker vote is cast by — you guessed it — the vice president. But what if the tie breaking vote that’s supposed to be cast by the vice president is to determine who the vice president is? And which vice president would cast it? The incumbent, or the one who is yet-to-be-seated?
I wondered the same thing. And I had no freaking clue what the answer was. So I called Kyle C. Kopko, an expert in American politics, constitutional law and Pennsylvania policy. Kopko explained that if we get to January 3rd with any kind of uncertainty about who the president is or who won certain elections, there would be some serious “fireworks.”
Interestingly, he says that in the event of a Senate tie on the vote for vice president, Pence would actually get to break the tie for himself. Because Pence presides over the Senate and holds that position until a new vice president is seated, he would still preside and still get to break the tie vote to put himself into office. But in that scenario, Kopko had to hedge that even he was not 100% certain that’s how it would play out. It’s something that has simply never happened before.
What he was certain about was that chaos would ensue if we are still trying to figure out who won elections going into January. In the event of an electoral college tie and contested elections, he explained that the House majorities could literally change over the course of each day as the House delegations kept voting and results from House races kept being certified. “You could have a situation where some of these disputed seats are resolved over a period of days, it’s not a static snapshot,” he said. “On January 3rd you might have one group of members that are duly elected, and the next day a few states are certified, does that tip the majorities?”
In a “worst-case scenario,” a situation where both House and Senate elections were being disputed or delayed because of mail-in voting (and we had an electoral college tie), Kopko said the Senate could take extraordinary measures to resolve the issue. One such scenario could involve the two sitting classes of the Senate voting to figure out what to do. As I explained a few weeks ago in Tangle, the Senate has three classes, each roughly one third of its members — and each class is up for reelection every six years in a staggered format.
This year, Class II senators are up for re-election. If they are not seated by the time we need to certify the president, their terms will expire in early January, too. That means the majorities could shake out based on sitting Class I and Class III senators only, whose terms are still active. This would be one of the rare tie breaking scenarios where Democrats have the advantage: the makeup of Class I and Class III senators is 33-32 in their favor, with two independents who also caucus with them, creating a healthy 35-32 advantage.
That means, since the Class II senators are up for reelection, that the sitting senators — with a Democratic majority — could be in charge of resolving who is running the country. But, again, there’s one major caveat: the President Pro Tempore of the Senate, who is the fourth in succession to the presidency (behind the Speaker of the House), is Chuck Grassley, a Republican. So in a situation where there was no president, no vice president, no Speaker of the House, and the new Class II senators weren’t yet seated, we’d have a Republican (Grassley) serving as acting president and overseeing a Democrat-controlled Senate. Is your head spinning yet?
Wild cards.
While an electoral college tie is potentially in the cards, we’d have to have a certified election nightmare for the House and Senate to be unable to resolve who is president and vice president. But in the wake of an electoral college tie, there are all sorts of possible — if not likely — scenarios where things could become very, very unpredictable.
For one, if Democrats controlled the House and could prevent Republicans from obtaining a House state delegation majority by flipping a few districts like Kansas-2, they could conceivably change House laws and procedures while the entire federal government tries to sort out who is president. In one particularly juicy scenario, Democrats could change the rules so the House delegation votes are closed to the public — or anonymous — allowing Republican representatives to jump ship from Trump to Biden without facing public scorn or retribution. With near certainty, this is something Democrats would try to do, given how many Republican representatives they know have private reservations about Trump.
And, much as in the Senate, there’s also the issue of expiring terms. On January 3rd, all 435 members of the House of Representatives will see their terms end and the new House term begins. In a scenario where, say, 300 of those 435 House elections are resolved, but 135 are still being contested, we could have a partial House takeover with a completely unknown, and essentially random, partisan divide.
“If a presidential election is delayed and unresolved because of disputes over the validity and timing of mail-in ballots, many individual House elections—decided by those same ballots—would probably be delayed and unresolved too,” Michigan State University professor Brian Kalt wrote for Foreign Policy. “The result would be fierce fighting over huge swaths of the House’s membership. Majority control could change chaotically from day to day as a partially filled House wrestled over each new batch of individual election results, amid a fog of state recounts and litigation. Without at least 218 seats filled, there would not even be a quorum, meaning there would be no speaker at all.”
Kalt even suggests a solution to the potential catastrophe of having no acting president: he notes that the 20th amendment would allow Congress to seat a former president to hold the fort down responsibly for a brief period of time while the results of the elections are resolved. While presidents can’t be re-elected, they can legally be placed in an acting capacity, and Kalt suggests that Obama, Bush or Clinton would all be far better suited than a current politician to temporarily hold the office while disputed results are resolved.
“The point is not to choose someone acceptable to all Americans—no such person exists,” Kalt reminds us. “The point is to have an experienced hand other than the departing incumbent at the helm during a tumultuous, uncertain, but ideally brief time.”
It’s also possible, and perhaps even likely, that the biggest fights will happen intra-state. Kopko, who specializes in Pennsylvania politics, explained one frightening scenario where there is a fight over the validity of votes coming in from a state like Pennsylvania. If Pennsylvania sends in two different sets of returns, for instance, one certified by the Republican general assembly and one certified by the Democratic governor, it’s actually the presiding officer of the Senate who gets to resolve the issue (again: Mike Pence, until January 20th).
This, of course, would set off a series of lawsuits at the state level to resolve the issue, but once the returns are sent to the federal government to be sorted out and certified for the electoral college, the federal government presides over arbitration of the issue.
And then there’s Georgia’s special Senate election. Georgia’s Senate race is a “jungle primary,” which means multiple candidates are on the ballot and one has to get more than 50% of the vote to win in November. If nobody does, there will be a runoff election scheduled for January 5th. Given that this particular seat in Georgia is a toss-up Senate seat, and one that Democrats are trying hard to flip, that means control of the Senate may not even be voted on until January. In one of the bizarre, tiebreaker rabbit holes I laid out above, we could have to wait for the Georgia Senate runoff race to be resolved before we know who even has a Senate majority, and if that race alone is contested it could keep things in flux for weeks or months out from January, not just from November.
Even if results in Georgia are clear, though, that might not be enough to resolve the Senate. In the event a handful of Senate races are being disputed, state governors — who have the power to appoint senators to vacant seats — could try to fill those seats with senators of their choice while the contested elections are being resolved. That means a Democratic governor, for instance, could appoint a Democratic senator to what was a Republican seat but is now in a contested election, thus flipping the seat before we even get election results. And then, of course, in the time an acting Democratic senator was sworn in, that could swing power in the Senate to a Democratic majority to choose who the vice president or even the president is.
“There are so many doomsday scenarios here,” Kopko told me. “Thankfully, this is all — knock on wood — unlikely.”
Special shoutout to Tangle reader Jonah Adams, who gave me the idea for this edition, helped me research some of it and sent in a bunch of electoral college tie scenarios months ago to convince me how possible it was.
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