Summary:

In this episode, we discuss the potential for a 269-269 tie in the Electoral College during the US presidential election. It explains how the 12th Amendment mandates that the House of Representatives would then choose the President, with each state delegation receiving one vote. We analyze the current composition of the House and Senate to assess which party would likely have the advantage in such a scenario, ultimately concluding that the outcome is uncertain and depends heavily on the results of the upcoming Congressional elections.

Questions to consider as you read/listen:

How does the Electoral College system potentially lead to a 269-269 tie in the presidential election?

What are the procedures outlined in the 12th Amendment for resolving a presidential election tied at 269-269?

How does the current composition of the House of Representatives and Senate impact the potential outcome of a 269-269 tie?

Long format:

The 269-269 scenario

In one week from now the United States turns to the ballot box to select various elected officials including members of Congress, some US Senators and the President of the United States.

As we all know the President of the United States is selected by the Electoral College. Under this system, rather than a direct popular vote, each state is assigned a certain number of electors (equal to its total number of Senators and Representatives in Congress). When voters in a state cast their ballots for president, they’re actually voting for a slate of electors pledged to a candidate. The candidate who wins the majority of votes in a state typically gets all its electoral votes (except in Maine and Nebraska, which split them). A candidate needs a majority of the 538 total electoral votes to win the presidency (270 or more). There are a total of 538 electoral votes in the Electoral College. A candidate needs at least 270 of these votes to win the U.S. presidency. But as one can see by math because the total number of Electoral College votes is an even number, then the result in theory could be 269-269. A tie.

The 12th Amendment was adopted to examine this outcome and codify what happens in the event of an Elector Collage tie. Here is the relevant text as it exists (don’t worry we will make it plain after the legal gobblydegook).

The exact text:

“and if 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. But in choosing 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 case of the death or other constitutional disability of the President.–]”

Stated more plainly, if there’s an Electoral College tie, meaning each candidate receives exactly 269 electoral votes, the 12th Amendment specifies that the election for president moves to the House of Representatives. In this process:

Each state’s delegation in the House gets one vote. So, instead of each representative voting individually, the representatives from each state come together to decide which candidate they’ll support as a state.

A candidate needs a majority of states (at least 26 out of 50) to win the presidency.

If the House cannot come to pick and it is 25-25, and that log jam keeps up until March 4th, then whomever the Senate picks as Vice-President becomes the President.

So let’s use math and look at the current composition of the House other see what would happen in the case of the 269-269 tie. If the current House were to vote (meaning that there was no 2024 election for Congress and every Congress member remained and if every member of Congress followed party lines and voted for the President of their party), the result would be the Republican candidate would get 26 votes, the Democrat candidate would get 22 votes and two states would be tied as they have the same exact number of Democratic members of Congress and the same exact number of Republican members of Congress (those two states are Minnesota and North Carolina). This is the fourth column of my chart. The current Republican candidate would win given all of these assumptions.

Now, obviously with this Congressional election some seats will be won by one party and lost by the other. But in the aggregate, will flipping one or two seats change the outcome of a state’s delegation enough to flip the one vote that the state has to the entire other party? In my analysis, I looked at the “balance of the parties” to look at the number of Democrat versus Republican Congress members. If that balance of the parties were within 2 Congress folks, I designated that the state was “too close to call” and therefore could go either way under the one vote per state rule. I figured that it was unlikely that in a state that 3 seats would flip. A line has to be drawn somewhere and that’s where I drew the line. Under this scenario, the math shows 25 solid Republican states, 17 solid Democrat states and 8 too close to call. Under this scenario, the Republican candidate would have to pick up one of the “too close to call” states to win, but the Democratic candidate would need to pick up ALL of the “too close to call states” just to tie. A tie would do no good to that Democratic candidate unless there would an entire state that would show attrition and come over to the Democratic candidate before March 4th.

If it is tied and goes past March 4th, the Senate would have picked the Vice President and the Vice President would then be President. Let’s look similarly how the Senate would most likely vote. Again, applying similar logic as we did with the House of Representatives, this is the math as far as current composition of the US Senate. Recall they also get one vote per state too. As of right now there are 20 states where both Senators are Republican. There are 23 states where both Senators are Democrat. There are 3 states that have one Democrat Senator and one Republican Senator (a tie). And that leaves 5 states that have independents. I labeled the states with the independents as unknown. However, one can look at those 5 states with independents to see which of the two parties that other Senator is and imperfectly infer which way it “leans” perhaps. When one does that it reveals that there are 3 states leaning Republican and 1 leaning Democrat.

When we do this, under the current composition, there is no clear winner. However with 23 votes, the path for the Democratic candidate by math alone is a little bit easier.

(N.B., I did not have time or interest to research which way each independent Senator tends to vote or which US Senators are vulnerable or safe— so sorry. But I figured that if there were two of one party, then there is no way that both flip because of staggered terms. I therefore recognize that there could be more ties too. I also did not care to delve into the polls and discover what the possible outcome might be of a given race. This is just a thought exercise if a really deep whatif.)

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Episode 47: The 269-269 Scenario 11:12 Share

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Episode 47: The 269-269 Scenario