Extra: 269-269 ... What If There’s An Electoral College Tie?
28:29 Share

This is the Fox News Rundown Extra. I'm Dave Anthony. Today, something that hasn't happened since America's infancy. What if the 2024 presidential race ends in a tie? It's a scenario that is not far-fetched.

The Fox News power rankings that came out the other day have seven battleground states too close to call. In the states that are not toss-ups, Fox projects Vice President Harris has 226 electoral votes, 219 for former President Trump. Whoever ends up with at least 270 will win. Here's where it could get interesting. Projecting those battleground states, if Trump wins Pennsylvania's 19 votes and Michigan's 15,

and either North Carolina or Georgia both have 16. The Trump Electoral College vote total would be 269. Harris would have the same total, winning Arizona and Nevada and Wisconsin and either North Carolina or Georgia. The result is a tie, which begs the question, then what? Congress would decide. That has not happened in 200 years.

When the House elected John Quincy Adams, our sixth president, defeating Andrew Jackson, who had more popular votes and more electoral votes. But since there were four candidates in the 1824 election, Jackson didn't get the majority of electoral votes needed, and then lawmakers stepped in. The House also decided the 1800 election, after Thomas Jefferson and his running mate Aaron Burr ended up tied.

Back then, an electoral vote for president and vice president counted the same, something they put in the Constitution later to change that. So Burr and Harrison both tried to win the White House. Lawmakers ultimately picked Jefferson. Now, we discussed all of this with Fox's chief congressional correspondent, Chad Pergram, who took us down some rabbit holes on just how crazy a 2024 tie could be

deciding this election in 2025. This possibility, of course, might not happen, but it is real. And Chad had so much to say about this scenario, we couldn't put it into the rundown, all of it, the other day. So here everything is in our Weekend Extra. We hope you like it and appreciate you listening. And now after an intro that was far too long. Sorry about that. Here is Chad Pergram on the Fox News Rundown Extra. ♪

Hi, how are you? Good. Doing good, thanks. Okay, we're good. Yeah, we'll get into this scenario, which is not wild and crazy. It's actually possible. And which scenario is this again? The contingent election? What happens if there is no winner in the Electoral College? And it's not, I know we can get into faithless electors, and we will, because they've happened, and there were seven of them in 2016. But you don't even have to go that route.

Yes, I know. There is a way to take the seven toss-up states, divvy them up, and there's a tie. Yeah. So that's what we're talking about. What happens next? We'll get into some history. We'll get into the process, that kind of stuff. All right? I'm ready. All right. Oh, before we go, do you know the current state breakdown in the House? Mm-hmm. What is it?

Give me a second here. It was 26-22 going into the 24 election. It's 26. Right now it is because I wrote about this. Is it still 26-22 with two ties? Give me a minute. Give me a minute here. That was the last I saw. Give me a second here. I wrote an entire blog about this. Good. I knew you would know all this stuff.

Twenty two Democrats, two ties. But of course, doesn't really matter what it is now. That's it's the new it's the next year. Right. Right. But if those ties get what I and what I what I perceive it to be is probably it could go as high as like.

28 or 29 it's it's probably i mean even if even if democrats flip the house there's a scenario where republicans control more state delegations yeah all right so all right so there's a lot of scenarios that are crazy but it's kind of fun to talk about i mean we our whole world is on predictions so that's what we you know look ahead and predict things all the time so here we go if you're ready chad yes

Joining us again on the Fox News Rundown is Chad Pergram, Fox News Senior Congressional Correspondent. As we look ahead, we're now...

Less than three weeks till Election Day, and there are all kinds of different scenarios. The Fox News Power Rankings came out on Tuesday showing there are 93 electoral votes up for grabs, a slight advantage in the projected number currently for Vice President Harris over former President Trump. But there is a chance that when all the voting is done and we get to the Electoral College result tomorrow,

We could have a tie or somebody won't get the majority. And we have all kinds of drama after that. First of all, Chad, thanks very much for being with us. Thank you. So, Chad, I mean, if something like this were to happen, I mean, we're talking about the kind of presidential election drama way beyond what we saw in 2020 with the challenges, right?

Potentially. And here's the background that the Constitution, if you look at the 12th Amendment and other provisions in the Constitution, that the House of Representatives, if there is a dispute in the outcome of the Electoral College or a tie or somebody can't get to 270 or let's say, you know, there's competing slates of electors from Georgia or North Carolina or, you know, Pennsylvania or something like that, nobody gets to 270.

And therefore, it is up to the House of Representatives to decide the president. Now, it's interesting that some of the founding fathers thought that this was going to be the direction that we went more often than not. We have only had the House pick the president in what's called a contingent election twice. 1801 for Thomas Jefferson, and then you had 1825 for John Quincy Adams. There was a special election, a contingent election in the Senate election.

for the vice president that was in the 1830s, Martin Van Buren's vice president. But again, the Senate, their process is a little bit different. And I'll warn you now, if you're going to have a contingent election in the House for the president, you're going to have a contingent election in the Senate for vice president. Yeah, we'll break that all down. When we deal with the House...

This is not the way people think. When the House generally votes on a bill, there's 435 members and you get a majority. It's different if you have a contingent election in this case like we could have in 2025. How does it work?

Yes. Well, here's what happens. If you go through that certification of the Electoral College, which we saw on January 6th and 7th last year, and just forget to the degree you can about the riot for a minute. Let's just talk about the parliamentary mechanics right now. When they finally affirmed the electoral vote, this was almost four o'clock in the morning on the 7th.

of January, they said that there was a winner. And the vice president, last time it was Mike Pence, this time it will be Vice President Harris, who presides as the president of the Senate. She will still be in that role regardless at that stage. And so she will preside over either her victory or loss or, as you say, something undetermined here. And there will be something in the language that would say that, you know, we've counted and gone through all the electoral votes and it's not clear who the winner is.

And what that should do, and again, because we've not done this in 200 years to the year, frankly, what we think would happen is almost automatically is you would start to have a contingent election. So the House of Representatives votes, but they vote by state delegation.

So there's 50 votes, right? Yes. Yes, exactly. And they count. And so it's whichever party. They count the same. Yeah. California is weighted the same as North Dakota. North Dakota has one seat. California has more than 50. But guess what? North Dakota counts just as much.

From the Fox News Podcast Network. I'm Ben Domenech, Fox News contributor and editor of the Transom.com daily newsletter. And I'm inviting you to join a conversation every week. It's the Ben Domenech Podcast. Subscribe and listen now by going to FoxNewsPodcast.com. So in California, they add up the number of Democrats and the number of Republicans and that's it?

Well, but right now you see Republicans, it's 40 to 12 in the California delegation, 40 Democrats, 12 Republicans. So that's going to be a Democratic. And they might even pick up several seats this time around. There's about five House seats that the Republicans have that are genuinely in play. So it could go even more. So Democrats are going to win California. But that counts as one.

And then is offset by North Dakota, one, has one House member. South Dakota, one. Delaware has one. You get the idea. That's a Democratic seat right now. It should be a Democratic seat next time around. But you get the idea. Right. So this is where and I wrote a blog about this, you know, some weeks ago. It's on our Web site. I went through and did a numbers crunch as to the state delegations.

And so right now we are at, and this is in the current Congress, and I can kind of predict how it might go in the new Congress. Okay, because it'll be the new Congress sworn in before this happens. January 3rd, that's right. Right, this is not the current Congress, the new one. And I will even give you a scenario where Democrats might win control of the House and lose numbers of state delegations, yet Republicans would have an advantage in this rarefied situation.

you know, a contingent election that they would have in the House of Representatives. OK, let's back up for one second for people who are trying to catch up with us. In that scenario, you could have House Speaker Jeffries, a Democrat, right, and Democrats controlling the House. Yet, as you said, Republicans could have more states where they control the delegations. Therefore,

Donald Trump would have the advantage to win the election. Conceivably. So right now, and again, this will change after the new year, Republicans control 26 state delegations. Democrats control 22. There are two that are tied. OK, so what do I think is going to happen? So let's let's look at let's look at North Carolina. North Carolina is one of the tied ones right now. It's 7-7.

Because of redistricting, we believe that it could go to 10-4 Republicans, if not 11-3. Now, let me take you down the deep, dark rabbit hole here.

Let's say that Vice President Harris wins North Carolina and there is no dispute about that. Let me say that again. Let's say that Vice President Harris wins North Carolina and there is no dispute about that. OK. Because you have a conceivably 10 to 4 or 11, 3 Republican delegation in the House of Representatives representing the Tar Heel state.

Do you think that they are going to just respond to the wishes of the good people of North Carolina and say, well, she won the state and we're going to vote for, are they going to vote for Trump? Those House members on the House floor, they're not bound to that at all. Georgia, there's really only one House seat in play there. You know, that's 9-5 right now in favor of the Republicans. What if the same thing happens there? You know, that say Vice President Harris wins outright in the Electoral College. But and again, just because you won, that doesn't carry over into this contingent election.

Now, let me take you deeper and darker down this rabbit hole. So right now, Virginia is 7-6 Democrats.

There are two to three House seats that are competitive there. There's a seat in the Tidewater area. Jen Kiggins is a freshman Republican. What if Democrats flipped that? Abigail Spanberger represents a central Virginia district right now. She is retiring to run for governor next year. Republicans have a decent shot at picking that up. So you see where maybe Virginia could suddenly go into the Republican camp. Michigan right now is also 7-6 in favor of the Democrats.

The seat right now held by Democratic Representative Alyssa Slotkin.

is in play. She is running for the Senate. By contrast, you have John James, who's a Republican from the Detroit suburbs. And I'm told that that race is very tight. So you could have a seat or two in Pennsylvania flip. OK, so your scenario, Republicans could have 20, what, nine, maybe? Yeah, it depends. And, you know, and the one I'm also really looking at here is is Mary Peltola.

She's the Democrat from Alaska. Again, that's kind of like North Dakota, South Dakota, some of these other, you know, single district states. That was a Republican seat for forty nine years until Don Young, the Republican, died. And so he died. Mary Peltola won a special election, then won in the general election. But she has never been on the ballot when former President Trump has been on the ballot. And he carried Alaska by 10 points last time around.

And there's some other dynamics about another Democrat being on the ballot in Alaska that could take that away. Even so, what I'm telling you in the short in the shorthand here is.

is even if it's a good Democratic night for Democrats in the House, you might still have an increase in Republican delegations, and therefore they presumably would vote for Donald Trump for president and elect him because there's a lot more Republican state delegations in the House. It is one vote per state in a contingent election. And again, not tied to how that state went in the Electoral College. Exactly. Now there's another issue here.

The vice president. Now, we consider them running mates. Tim Walz, of course, for Vice President Harris. J.D. Vance for former President Trump. That would be decided by the Senate. But it's not by state. Every senator votes. That's right. And right now, you know, I did a bit of a numbers crunch just for fun, you know, looking at the delegation there. But it's done differently, as you say.

And, you know, let me take you back to the election of 1800. There's a song in the Broadway musical Hamilton called The Election of 1800, by the way. If there's one election I wish I could have covered, Dave, it probably would have been that one. 1876 was pretty amazing, too. But yeah. Yeah. Yeah. That's that's in there, too. But I think the election of 1800 might edge it out because this was the first time we ever did the contingent election business. So Thomas Jefferson.

So Thomas Jefferson and Aaron Burr and John Adams. John Adams was the sitting president of the United States. And we hold, you know, Adams up here. And I'm stretching way up here in terms of how we think of him and his reputation as a founding father. You know, he succeeded George Washington. Well, he was beaten.

And so it came down to this special election, this contingent election in the House between Jefferson and Burr. And in fact, they finally elected Jefferson after more than 30 ballots. It took them several days. They basically conducted this session in what's now the office of Senate Minority Leader Mitch McConnell because the House wing of the Capitol was not built yet.

And finally, Maryland, which was a tied delegation, finally, some of their members didn't vote. And so that slate went to Thomas Jefferson. And eventually, you know, he won after many, many, many ballots. So John Adams had been knocked off the ballot here. It was between Burr and Jefferson. So the Senate elected Aaron Burr, who opposed him. So you had this weird scenario where Thomas Jefferson got a vice president who had been his opponent.

If you can imagine, I mean, that's just bizarro world. Yeah. And they changed that, of course, after that election. They amended the Constitution. That can't happen anymore. Right. Exactly. So but it was just it was just so strange that that was, you know, you know what happened. But it is up to the states, the Senate, you know, voting one by one in a more customary way that we're used to seeing them vote to determine who the vice president. But that Senate, Chad, the Senate could be 50-50.

Well, this is why it took an awful lot of horse trading for days and days in the House of Representatives. You know, you had this electoral dispute about the vice president in, you know, 1837. You know, one of the first times you had a faithless elector cast about or be a faithless elector for president or vice president was in 1968. It really wasn't. Well,

Whether or not that that was in play, but you had somebody who wasn't bound to the vice presidential candidate at that time. And there was a faithless elector, meaning they just, you know, they did not represent what the voters had put their faith in. Hence the term a faithless elector. We had seven of those in 2016. Yeah, exactly. And so, you know, you get into some really weird, you know, turf here. Could the vice president and again at that moment is Vice President Harris elected?

because she is the president of the Senate. Could there be a tie-breaking scenario? There's a lot of extra constitutional turf here. In some respects, I'm more worried about president versus vice president because you kind of have to have that. And that's where if they can't settle this after a period of time and you get to Inauguration Day on the 20th,

Suddenly you don't have a president because Biden's term has ended. You don't have a vice president because Harris's term has ended. Well, who is next in line of succession? Well, the Speaker of the House. Okay, I've taken you down the deep, dark rabbit hole. I've taken you down the deep, darker, darker rabbit hole. Now I'm going to take you down the deepest, darkest, darkest Halloween hellscape that you can imagine. Let's say that Republicans win the House of Representatives.

Dave, how many days did it take them to elect a speaker last time starting in January? Oh, wow. Yeah, that's a while. OK. Yep. How many days did it take them to elect a speaker in October after they bounced Kevin McCarthy? Twenty two. And they had several different candidates that didn't make it. They have spent 27 days this Congress trying to elect a speaker of the House. So let's look at the calendar. I say it's about the math. This one's about the calendar.

Let's say you can't elect a speaker expeditiously starting at noon on January 3rd when the Congress is supposed to begin. There have been some theories and some ideas batted around that one side or the other might try to delay starting the Congress or electing the speaker.

because it serves their advantage politically somehow. OK, I don't know. We don't know how or why, but OK, that's an option. You know, it's like, you know, you have that tackle eligible play in your pocket. You don't know how or why you might use it, but you get to be, you know, that right situation in the goal line stand in the fourth quarter and you play it. OK, you run that play. So this is kind of what we're looking at. Let's say they can't actually start electing

a house or I'm sorry, swearing in a house because they have to pick a speaker first. Let me say this again. You absolutely unequivocally cannot do anything in the House of Representatives until you get a speaker, because then the speaker swears in the membership. OK, so if there's no speaker, you can't have an election conceivably. And that's where I say this might be the worst possible political hellscape that we have ever seen.

It is unbelievable. And there's also we didn't get into this, but let's say Donald Trump is elected by a majority of states in that scenario. What if the Senate is 51 49 Democrats? Could they elect Tim Walz as vice president? Very possible. Absolutely. So you could have Trump walls. Why not?

Absolutely. You see, this is this is where I'm talking about with Jefferson and Aaron Burr. You know, I mean, no wonder he shot somebody. You know, I mean, I mean, you know, I'm serious. I mean, this this is insane stuff. And, you know, I don't want to sound alarmist, but you could have a very close election in the House of Representatives. In other words, it might take us days to sort that out. And you might also have days where you are trying to or multiple races that it takes days to figure out, you know, who's you know, who won which which seat.

The last time they really challenged the seating of a member was in 1984 into 1985. It was a seat in Indiana, Frank McCloskey, who was a Democrat. And he had come off his first term. They did not seat him until they investigated. There were competing seats.

certifications from the state of Indiana and the Democrats were in control and they ultimately seated him in May of 1985. But that seat was not determinative as to which party had control of the House of Representatives.

And so if you don't know which party is in control, this is where I'm saying January 3rd, because you don't know. You know, let's say, you know, the margins about five either way and you have about five or six seats that are outstanding. Well, the Constitution says the House and the Senate, for that matter, but the House is up to the seating determined who it decides to seat in its body.

They have the final say. What do they do? You know, I talked about hellscape one. This is hellscape two. I'm serious. I mean, there's some real problems here. So potentially, I know we're going down all kinds of rabbit holes, but the main premise here of a tie or a faithful selector to making it so that one of the candidates doesn't get the 270, that is not a wild and crazy scenario.

You got it. We could, if that all happens, this could make 2024 the craziest election we've ever had.

Yeah, it's very possible. I mean, it is so close. You know, the one thing is that we do know, the few things that we do think that Republicans are certainly favored in the Senate, but you don't know. They probably win this West Virginia seat, but there might be another seat, maybe Florida, maybe Nebraska, maybe Texas. I don't put a lot of weight in that yet, but you never know. You know, the Democrats have to run the table in Ohio and Montana and some other places with

Wisconsin, Pennsylvania. So that's far from settled right now. It's pretty dicey. And, you know, jump ball is to the House. And that's where I say, you know, you get through litigation or you get through when these election returns come in for the House of Representatives and who is going to be the speaker. You know, it's you know, they say what is past is prologue.

And as somebody who covers this stuff closely, I've never seen so many possible doomsday scenarios. You know, we often my wife calls me Dr. Doom to start with. And and so we have a lot of these from time to time, but but not as many as this.

And we put this on the heels of what happened in 2020. In addition to challenging the electoral results, stop the steal, culminating in the riot, you know, you know, efforts by some still there's some who are still saying, oh, you know, it wasn't right. You know, they shouldn't have certified and so on and so forth. J.D. Vance, you know, on some of the Sunday programs this weekend, refusing still to say that.

that the President Biden had won and Donald Trump had lost. We haven't really moved on from that. In fact, in some respects, it may have gotten worse. And that's where I really seriously look at some of these scenarios. This puts that and the 2000 election of the Supreme Court on steroids, if this ends up in the House in January of 2025.

Yeah, absolutely. It could be, you know, quite a time, which is why I am going to get out of Dodge, go on vacation, which most people would not do, but I am because I think that my services will be better served from November through the middle of January than in late October.

Chad Pergam, Fox News, senior congressional correspondent. Who knows what we have coming up in the coming months. Election Day, less than three weeks away. Great to talk to you. Thanks for being here. Likewise. Thank you.

You've been listening to the Fox News Rundown. And now, stay up to date by subscribing to this podcast at foxnewspodcasts.com. Listen ad-free on Fox News Podcasts Plus on Apple Podcasts. And Prime members can listen to the show ad-free on Amazon Music. And for up-to-the-minute news, go to foxnews.com.

From the Fox News Podcast Network. I'm Janice Dean, Fox News Senior Meteorologist. Be sure to subscribe to the Janice Dean Podcast at foxnewspodcast.com or wherever you listen to your podcasts. And don't forget to spread the sunshine. I'm Guy Benson. Join me weekdays at 3 p.m. Eastern as we break down the biggest stories of the day with some of the biggest newsmakers and guests. Listen live on the Fox News app or get the free podcast at guybensonshow.com.