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| If it doesn't happen we'll just have to tie another day Source: 270towin.com |
Among the few plausible electoral college paths that lead to a Donald Trump victory, several involve a 269-269 tie, which is formally decided in the U.S. House of Representatives by the incoming class. Since the Republicans are expected to remain fairly dominant in the House, most discussions of electoral college ties assume Trump would win by default.
But what would a tie really entail? I'm not a constitutional expert, but here are a few thoughts based on my understanding of the process:
- State-by-state electoral college calculations only really apply if the national election is very tight. If a tie was indeed projected on election night, the odds are high that any number of states would be exceptionally close, resulting in legal challenges, recounts, activism and politically-motivated conspiracy theorizing at a level unseen in previous cycles. The public and media freakout would be immense.
- The popular vote total would probably become the de facto tiebreaker in the public consensus, but the side with the losing candidate might stress adherence to the formal House procedures (hoping to win there), leading to incredible institutional tension. The increased importance of the popular vote would compound and expand any recount and legal disputes, as Democratic margins in deep-blue states suddenly become critical.
- At this point the actual dates of certain formal electoral steps become important, with states needing to pick their electors by December 13th. Unlike in 2000, the current supreme court is split 4-4 between conservatives and liberals, exposing the terrifying prospect that major election-deciding decisions would be determined by lower state or federal courts, undermining the outcome's legitimacy. There would be huge pressure for the senate to confirm Obama's idling supreme court pick, Merrick Garland, which would introduce another layer of weird bargaining and deal-crafting. Depending on how Trump reacts to the events leading up to a potential supreme court tiebreaking decision, I could imagine either the Republican senate or some conservative justices quietly flipping for Clinton.
- Assuming the confirmed electors are still nominally split 269-269, there would be five days until their formal vote on December 19th. In these five days (and probably prior to that), another vertigo-inducing complication would come to the fore. In the House tiebreaker, members must vote on the top three electoral vote winners. Even if the Libertarian Party's Gary Johnson breaks out and wins Utah (unlikely), there will be tremendous pressure for individual electors to defect for a write-in candidate of their choosing. Incredibly, an elector in GA has already stated publicly his intention to go rogue. Because Trump is so unloved by Republican elites, and is likely to really go off the rails in a tie scenario, it wouldn't be difficult to imagine a coordinated effort to get someone like Mitt Romney or Paul Ryan into the House tiebreaker vote. Such an effort would quickly erode the norm against faithless electors, and other factions might try to introduce their own third candidate (Ted Cruz, Bernie Sanders etc.). Concurrent to this mess, states would probably try and strategically pass or eliminate laws binding electors to state vote outcomes (if possible), depending on the party or faction that controls state government (advantaging Republicans).
- Assuming the electoral college votes and no candidate receives a majority (270), the House next officially counts the totals on January 6th, a few days after the new congressional class is sworn in on January 3rd. Depending on ongoing recounts or legal challenges in House races, this January 6th date could potentially be subject to strategic manipulation. After certifying the electoral votes, the countdown to inauguration day begins (January 20th), during which time the House and Senate must vote on president and vice president.
- An actual House vote would be another complicated mess: instead of a simple plurality or majority vote by the full body, state delegations vote as blocks, with each state casting one vote (advantaging Republicans). To win, a candidate must receive a majority, introducing the possibility of yet another tie/non-outcome (the House could continue voting to try and get a winner, or else the VP pick from the senate would be promoted immediately after inauguration (temporarily, I think)). Additionally, state delegations decide their vote amongst themselves, leaving open the possibility that some even-district states might deadlock. Members whose party or candidate preference differ from the presidential popular vote totals in their state and/or district would face tremendous pressure on all sides.
- The senate picks the vice president with a straight majority vote by the full body of the top two electoral vote getters, leaving open the weird possibility that the the party losing the presidency in the House might try and place their own candidate in the VP spot.
Nightmare scenarios involving maximal strategic manipulation leading to legitimacy dilemmas leading to military involvement or a constitutional convention are possible, but unlikely. Collective action traps are rarely as terrible as the formal analysis predicts. More likely is that good luck, patriotic public officials and emergent public consensus (populari-tie?) close down most avenues for manipulation, and a clear outcome simply emerges without a complete breakdown. It's easy to imagine lawmakers and key high-status figures like former presidents, presidential candidates, supreme court justices and the candidates themselves quickly responding to the direction of mass public sentiment and signalling a dominant outcome via unanimity (the an-tie establishment, amirite?).
The silver lining to any complete or partial tie meltdown (aside from the puns) would be the likely scrapping of our antiquated electoral college system in favor of a more simplistic (and more democratic) national popular vote. For all the same reasons why a tie scenario is a disaster, changing the diffuse, federalist system is unthinkable today. It will probably take a severe external shock to align the incentives of all the various stakeholders and veto point institutions to push through meaningful reform. Until then, we'll just have to live and let tie.