I’m not the first person to notice that 2020 is a year full of surprises, so why not expect the unexpected? How about a tie vote in the Electoral College, something we haven’t seen in a presidential race since 1824 or in a vice presidential race since 1836. I’ll offer my actual prediction before polls close on Tuesday, but meanwhile here is my “Nightmare Before Election Day,” a look at what happens if Trump and Biden tie in the Electoral College.
Look for this column at Real Clear Politics on Monday to follow the comments.
It’s 2020, Folks! Why Not a Tie Vote in Electoral College?
By Frank Miele
Everything about 2020 has been haywire, starting with the COVID pandemic, so why should we expect Tuesday’s election to be any different?
The common wisdom is that Joe Biden will destroy President Trump with a massive win. We’ve been told for months, after all, that Biden has a commanding lead not just in the national popular vote, but also in key swing states such as Michigan and Pennsylvania.
On the other hand, Trump loyalists insist that the polls showing Biden ahead by as much as 17% are just one more manifestation of Trump Derangement Syndrome. According to this theory, there is something called a “shy Trump voter,” which will result in a massive unexpected show of support for the president on Election Day. Outperforming expectations — even in just a small number of swing states — could easily result in Trump repeating his 2016 miracle and sending thousands of liberal celebrities on a caravan to Canada.
But this is 2020, remember? So expect the unexpected, and what’s more unexpected than a tie vote in the Electoral College?
Although the odds of that happening are remote, well under 1%, it is not unheard of. In fact, three elections in the first 50 years of the republic were ties — in 1800, 1824 and 1836. And when you go to an interactive electoral map like the ones here at RealClearPolitics or at 270toWin.com, it’s not at all difficult to come up with plausible scenarios where neither candidate reaches a majority in the Electoral College — and instead they are deadlocked at 269-269.
You can see my proposed electoral map here. I started with some basic assumptions that seem reasonable. First, don’t expect major shifts in traditionally red states like Texas and Georgia. Just give those to Trump because he is almost certain to win them. Second, you can safely assume that Trump will lose at least one of the “Blue Wall” states in the Upper Midwest that brought about his surprise victory last time around. If Trump were to win any two of those three states, he probably is ensured of victory again. But in a fit of caution, I actually put both Michigan and Pennsylvania back in the Democrat column, retaining only Wisconsin with 10 electoral votes for Trump.
The president can’t afford to lose any other states he won in 2016, including Florida, his adopted home state. Despite polls going both ways, I am pretty confident that Trump will win this crucial battleground by significantly more than he did last time. That’s largely based on a sizable increase in black and Hispanic turnout for Trump that I and others expect to see.
So where does that leave us? Nearly tied already, but with some more decisions to make. Nebraska and Maine both award one electoral vote each to the winner of their individual congressional districts. I ended up giving Nebraska’s 2nd Congressional District to Biden, and “Maine 2” to Trump. If that happens, you wind up with a tie vote, but it’s by no means the only scenario where that happens. If Trump loses Arizona, for instance, but picks up Nevada and New Hampshire, we get largely to the same tipping point where a single congressional district could make or break a candidate.
So what happens if the Electoral College appears to be tied after the Nov. 3 vote (or after all the votes are counted and all the court challenges are mounted in the subsequent weeks)? That’s where political junkies get lost in a swirl of dizzying possibilities that are almost infinite in their variety.
Consider: The Electoral College does not vote until the first Monday after the second Wednesday in December. That is when individual electors in each state cast their ballots. The states then send their votes to Congress, which tabulates the results the first week of January before a joint meeting of the House and Senate. If the electoral vote is officially tied, then the House immediately convenes into a presidential election session to pick the new president in what is called a contingent election.
Of course, the tie being sustained from Election Day to the day when electoral votes are counted would depend on electors remaining faithful to the candidate to whom they are pledged. The Supreme Court said this year that electors can be fined by states if they try to switch their vote, and they can theoretically also be removed and replaced with an alternate who will vote in accordance with the people’s decision. But there is still plenty of wiggle room. Individual electors may still be tempted to cement their place in history by switching their vote and thus individually electing the next president. And states controlled by a single party may opt not to oppose such a faithless elector switching his or her vote if it benefits that party’s candidate.
Should the count remain tied when it reaches Congress, however, there is still major uncertainty in determining who the next president would be. That’s because the House of Representatives does not vote for president as individual members, but as state delegations. In other words, each state gets one vote, and you need 26 state votes in order to be selected as president. No one can even predict the makeup of those delegations at this point because they will be based on the membership of the House after Tuesday’ election. But we can certainly get some clues by looking at the current membership of each state delegation, and it is a frightening indication that everything would be completely up in the air.
Based on a count of Republicans and Democrats in each delegation today, there are 26 states with a majority of Republican members, 23 states with a majority of Democrat members, and one delegation (Pennsylvania, of course!) that is evenly split. The vote of an evenly divided delegation would not be counted, but you do need an absolute majority of states to win in any case. That means 26 for the win.
It is therefore of paramount importance to both major political parties to win as many seats in the House as possible on Nov. 3. In states with just one representative, replacing a Republican with a Democrat would likely switch the state’s vote for president. Likewise, in states where one party has a slight advantage, such as four Democrats to three Republicans in Colorado, switching one of those Democratic seats would swing the state to Republican when the House selects a president.
If the House is unable to select a winner, the new vice president would take office temporarily as president. So who will the new vice president be? That depends entirely on who holds the majority in the new Senate, which holds its own contingent election for vice president. Unlike the House vote, senators will vote individually for one of the top two candidates, with a majority of 51 votes needed to select a winner. That means if the Democrats reclaim the Senate, Kamala Harris will be vice president. If Republicans retain their Senate majority, then Mike Pence will continue as vice president. And if the Senate is divided evenly at 50-50, it’s going to be a long night — because the vice president can’t break a tie in this vote.
All of this uncertainty could result in two possible nightmare scenarios. One, where the president and vice president come from separate political parties, and two, where Congress can’t reach a decision on either president or vice president, and Speaker of the House Nancy Pelosi is sworn in as acting president on Jan. 20, 2021.
So if 2020 seemed topsy-turvy, just remember: 2021 could be even worse!
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