Who Will Win the Electoral College: We Could Actually See a 269 to 269 Tie, And a Romney Biden Administration


Headline on January 7, 2013: “House of Representatives elects Mitt Romney President; Senate - Biden as VP.” To borrow from Tevye’s opening line in Fiddler on the Roof, “Sounds crazy, no?” Maybe not.

The polls may be showing a trend in one direction or the other, but many agree that this election could be one of the closest in history. Either President Obama or Mitt Romney will win the popular vote. There is a possibility, however, that neither will win a majority in the Electoral College.

There are 32 scenarios that could produce a tie Electoral College vote when looking solely at the swing states. Depending on the impact of Libertarian candidate Gary Johnson and the other third party candidates, any of these scenarios could play out.  

Adding to the anticipation, there are 24 states where the electors are not bound by state law. Of these, three are swing states: Iowa, New Hampshire, and Pennsylvania. Additionally, there is always the possibility of a faithless elector, one who is pledged by state law, but votes for another candidate. Since 1960, this has happened seven times.The last time was in 2000 when a Washington, D.C., elector cast no vote, instead of their pledged vote to Al Gore, in protest over the District not having a vote in Congress. Since this scenario is a violation of state, or in this case, District law, the vote counts and it is up to the state to take action. 

Accidental votes can happen, but unless state law provides for this, the vote is counted as cast. One other little known fact is that the Electoral College does not vote for the ticket as a whole. The president and vice president are voted on separately. So while it would be safe to assume the votes would be identical, there is a remote possibility that one of the vice presidential candidates could receive 270 votes. For the sake of not confusing the discussion, I’ll go with the logical outcome that the votes are the same.

If neither the president nor Mitt Romney captures 270 electoral votes, the House will elect the president with each state getting one vote. There are currently 33 states that have a Republican majority. Since this is not expected to change, a logical assumption is that Mitt Romney would be elected president.  The Senate then elects the vice president with each senator having one vote. The Senate is currently projected to remain in control of the Democrats, so barring a surprise display of bi-partisanship, Joe Biden would remain vice president.  

I imagine the initial reaction to this would be a review of the vote to identify faithless electors. If one or more were identified, there would most likely be pressure put on the state(s) involved to act. Whether any action could be applied to the current vote is doubtful. Simultaneously, I would expect a major effort to amend the Constitution to do away with the Electoral College and institute a national popular vote. The most important reaction though would need to be an immediate agreement between President Romney and Vice President Biden to commit themselves to governing.

There are positives to this outcome. Assuming that Gary Johnson was the difference (not to discount the other third party candidates, but Johnson is the one being recognized has having the potential spoiler affect), recognition of the importance of third-parties will increase. Further assuming that Johnson’s popular vote is greater than 5%, this gains significance since that would qualify the Libertarian Party for matching funds in 2016. The other potentially huge positive would be a realization that the major parties must work together.

Headline January 7, 2013: “House of Representatives elects Mitt Romney President; Senate - Biden as VP.”  Could this be the best result for the country?