Electoral College Tie: McCain 269, Obama 269

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.

FILED UNDER: 2008 Election, Congress, Political Theory, US Constitution, US Politics, , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. RW Rogers says:

    If the present Congress makes that decision, Obama would probably win. I could be wrong, but after a quick run-through I found 27 state delegations have more Dems than Reps while 21 have more Reps than Dems. Two are evenly divided: Arizona and Kansas.

  2. RW Rogers says:

    Forgot to add, while past performance is no guarantee of future possibilities, the election of 1800 provides the basic outline.

  3. Steve Verdon says:

    I predict riots, cats living with dogs, and a complete and utter break down of the moral fabric of the United States.

    Hmmm….better make more popcorn, and stock up on booze.

  4. Maniakes says:

    It seems to me that “immediately” takes effect upon the formal counting of the electoral votes by the old Vice President in front of Congress. I remember in 2000 and 2004 that happened after then new Congress was sworn in, but it doesn’t look like there’s anything in the Constitution requiring that to be the case. Maybe it’s in federal election law?

  5. Triumph says:

    The scenarios are far-fetched enough that I haven’t run the numbers of the possibilities.

    This is EXACTLY why Bush needs to pull a Musharraf and dissolve Congress and postpone elections.

    If not, we run the serious risk of having the terrorists get us.

  6. Being something of a politics geek, I did the math myself about a month ago:


    Here’s how the Current House looks:

    * Majority Republican Delegations — 21

    Of these, two (Delaware and Michigan) are in states that are either strongly Democratic at the Presidential level, or lean Democratic. Realistically, can anyone see Delaware’s single representative defying the will of his constituents and voting for the Republican candidate ?

    * Majority Democratic Delegations — 27

    Of these eight delegations (Arkansas, Colorado, Mississippi, North Carolina, North Dakota, South Carolina, Tennessee, West Virginia) are in states that are either strongly Republican or leaning to weak Republican.

    * No Party Majority — 2

    In the present Congress Arizona and Kansas, both strong Republican states, have evenly divided delegations.

    How this might change if it’s the next House that would decide things remains to be seen.

  7. Given that the voting goes until March 4th, the new congress gets involved.

    But take this scenario one step further. imagine we know in November that it is an EC tie. For the GOP, the smartest thing they could do would be to have one of their EC voters endorse Hillary. Then the three people with the most EC votes would be Obama, McCain and Hillary. Could Hillary move just enough votes to keep Obama from winning? Enough so that the states with a dem majority split there votes and a united GOP takes the state?

    I can’t think of anyone that the dems could do the same thing to the GOP. Take any of the GOP primary people into the mix and I don’t see them splitting the GOP vote.

    There is also the fact that the GOP routinely wins a majority of the states (2004 was 31 vs 19). So state democratic delegations will be facing home pressure. It is one thing to have a CD split the ticket. It is another to have the rep getting the benefit of the split to saddle them with someone other than their choice for president.

    All in all, it would be messy. Add in the idea of Biden getting to sit as president for a while and we are talking political theater of the highest order.

  8. Under Federal election laws, it would be the Congress that takes office in January 2009 that picks the President:


    Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote

    Ironically, Dick Cheney, who will still be President of the Senate on January 6, 2009 would preside over the entire process

  9. G.A.Phillips says:

    This is EXACTLY why Bush needs to pull a Musharraf and dissolve Congress and postpone elections.

    Dissolve Congress in what, the pit of acid under the floor in front of his desk?

    lol, you kook.

  10. Brett says:

    There’s nothing like a constitutional crisis to liven up your election, now is it?

    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.

    This is the part I don’t understand. Does this mean that the Senate would choose the next president, with Dick Cheney presiding – or that Dick Cheney would actually become President for at least a while?

  11. just me says:

    I also wonder what role the states tat allow EC voters to switch would play. If either party could get a few people to change, the congressional vote would be averted although whoever won in this environment would likely be viewed as stealing the office-but I figure that is how it would be viewed if the EC voters stuck to their votes and congress voted.

    In the end I imagine Obama and McCain would see this as a horrible outcome.

  12. trumwill says:

    I actually wrote a more detailed account (on my generally apolitical blog) of what might happen if there’s a tie. Basically noting that Obama would have more delegations and which ones McCain might be able to pull across in order to bridge the gap (which states that McCain might win that have more closely divided delegations, etc).

    Read the whole thing, if you’re interested. The short version is that it would be extremely difficult for McCain to pull it off and that it would likely lead to no good results either which way.

    Note: For some reason I missed the fact that Delaware has a Republican delegation, so my numbers are going to be slightly off.

  13. Crust says:

    It’s too late for 2008, but could we please have a constitutional amendment by 2012 that guarantees an odd number of members to the electoral college? Or switch to a popular vote or whatever. Just something that avoids this potential “fun”.