Photo Credit: The Visual and Data Journalism Team, US Election 2020 Polls: Who is Ahead – Trump or Biden?, BBC (Sept. 7, 2020) https://www.bbc.com/news/election-us-2020-53657174.
Written By: Savannah Stewart
Articles Editor, American Journal of Trial Advocacy
As Bear Bryant famously said, “A tie is like kissing your sister.”[1] No one likes a tie, especially when it is for the Presidential election. The U.S. Constitution and its Amendments lay out the procedure for the rare occurrence of an electoral college tie. Five hundred and thirty-eight electors compose today’s Electoral College.[2] Established by Article II, Section I of the U.S. Constitution, the Electoral College chooses the United States’ President and Vice President.[3] There are 100 electors for the total number of U.S. Senators, 435 electors for the total number of the House of Representatives, and three electors for the District of Columbia.[4] The allocation of electoral votes for each state is dependent upon the census.[5] The 2010 census determined the 538 electoral votes for the 2012, 2016, and 2020 presidential elections.[6] A state’s group of electors are referred to as a slate. In general, the State’s political party will choose the slate.[7]
Every state, besides Maine and Nebraska, follow the winner-take-all approach.[8] In general, the presidential candidate with the most votes will usually receive the State’s electoral votes from the party’s slate under the winner-take-all approach.[9] However, electors are not always required to vote for the candidate with the popular vote.[10] These electors are known as faithless electors.[11] Several states have enacted laws to bind an elector’s vote to the party the elector pledged to.[12]
Maine and Nebraska follow the district approach.[13] The district approach designates one elector to each Congressional district and the electoral vote is awarded to the presidential candidate with the most votes in that district.[14] In addition, the candidate with the most votes in the state will be awarded two electoral votes. It is possible for the electoral vote to be split under the district approach.[15] The newly elected President and Vice President must receive a majority of the national Electoral College votes, which is 270.[16]
The Election of 1800 was the first election to result in an Electoral College tie. Federalist President John Adams ran against Democratic-Republican Thomas Jefferson.[17] According to the popular vote, Thomas Jefferson and his running mate, Aaron Burr, won the presidency.[18] However, according to the electoral vote, Thomas Jefferson and Aaron Burr tied against each other with 73 electoral votes.[19] Article II, Section 1 of the U.S. Constitution, which was later amended by the 12th Amendment, arranged the procedure to determine the tiebreaker.[20] The presidential election was now in the hands of the House of Representatives, which was controlled by the Federalists.[21] Each representative could cast one vote to determine the presidency.[22] The vote was heavily contested due to the political turmoil of the election of 1800. Surprisingly, Senior Federalist Leader, Alexander Hamilton, raised support for his political nemesis, Thomas Jefferson.[23] The first round of voting resulted in another tie. The House casted thirty-five ballots in total.[24] The thirty-fifth ballot resulted in the Presidential decision, not because the votes were different from the last thirty-four ballots, but because one Federalist Burr supporter turned in a blank ballot.[25] Thus, Thomas Jefferson held the majority vote and won.[26]
After the Election of 1800, Congress passed the 12th Amendment in 1803.[27] The 12th Amendment substituted the procedure in Article II, Section 1, Clause 3 of the U.S. Constitution by creating separate ballots for the President and Vice President. Previously, each elector submitted two electoral votes.[28] The two electoral votes were not distinguished between the President and the Vice President.[29] The election of 1800 incentivized the change in procedure to be one electoral vote for the President and one electoral vote for the Vice President. In the instance of a future electoral tie, the House of Representatives would choose the President from the three candidates with the highest number of electoral votes as opposed to five.[30] The presidency would require a majority of electoral votes instead of a majority of electors.[31] The 12th Amendment streamlined the qualifications for the President and Vice President by requiring a candidate for each position to meet the same standard.[32] The hope of the 12th Amendment was to never have a repeat of the Election of 1800.
The Election of 1824 exercised procedure established in the 12th Amendment when no presidential candidate received an Electoral College majority. There were four popular candidates for the Election of 1824.[33] For this reason, no candidate received a majority of the electoral votes, which was 131 at the time. Therefore, a contingent election proceeded.[34] The 12th Amendment only allowed the House to vote on the top three candidates.[35] John Quincy Adams, William Crawford, and Andrew Jackson were the three choices, leaving out Henry Clay.[36] As the House of Representatives Speaker, Henry Clay held great influence and openly supported Adams. Adams won the presidency with a majority vote on the first ballot by the House.[37]
In addition to the 12th Amendment, the 23rd Amendment applies to the Electoral College. The 23rd Amendment designated three electoral votes for the District of Columbia to allow the citizens of the District of Columbia to participate in the presidential election.[38] Therefore, in terms of the electoral college, D.C. acts like a state but does not have statehood.[39]
What happens if neither candidate receives a majority of 270 votes in the upcoming 2020 election? A contingent election will proceed.[40] An electoral college deadlock could be the result of a tied election between two candidates, an election with multiple popular candidates, or an election where electors vote against the candidate they have pledged to or cast blank ballots.[41] The House of Representatives will vote for the President. Each State will have one vote and may vote for one of the top three candidates with the highest number of electoral votes.[42] Therefore, the slate for each state must come together to decide how they will use their single vote.[43] In order to become President, a candidate must receive a majority vote (26 votes) in the House.[44] The newly elected 2020 House of Representatives will vote in the contingent election and not the previously seated House.[45] The Senate will vote for the Vice President and may vote for one of the top two candidates.[46] Each senate member will receive one vote.[47] In order to become Vice President, a candidate must receive a majority vote (51 votes) in the Senate.[48] Due to the fact D.C. lacks statehood, D.C. would not participate in a contingent election.[49]
If the House were to deadlock and no majority has been reached by the beginning date of the presidential term, the previous Vice President assumes the role of acting President.[50] Once the House reaches a majority vote, the newly elected President will assume the role.[51] An Electoral College tie is rare but would not be unusual for the upcoming election. After all, it is 2020.
[1] Bear Bryant, AZ Quotes (n.d.), https://www.azquotes.com/quote/963000.
[2] What is the Electoral College?, National Archives (n.d.), https://www.archives.gov/electoral-college/about.
[3] U.S. Const. art. II, § 1.
[4] U.S. Const. art. I, § 2, cl. 3; U.S. Const. art. I, § 3, cl. 1.; U.S. Const. amend. XIXIII.
[5] Distribution of Electoral Votes, National Archives (n.d.), https://www.archives.gov/electoral-college/allocation.
[6] Id.
[7] What is the Electoral College?, National Archives (n.d.), https://www.archives.gov/electoral-college/about.
[8] The Electoral College, National Conference of State Legislatures (July 6, 2020), https://www.ncsl.org/research/elections-and-campaigns/the-electoral-college.aspx.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Distribution of Electoral Votes, National Archives (n.d.), https://www.archives.gov/electoral-college/allocation.
[14] Id.
[15] Id.
[16] U.S. Const. amend. XII (“[A] majority of the whole number of Electors appointed”).
[17] Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 Fordham L. Rev. 965, 975-76 (2016).
[18] Id.
[19] Id.
[20] U.S. Const. art. II, § 1.
[21] Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 Fordham L. Rev. 965, 976 (2016). See also Thomas H. Neale, Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis, Congressional Research Service (2016).
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] U.S. Const. amend. XII (“[The Electors] shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President . . . .”).
[28] Id.
[29] Id.
[30] Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 Fordham L. Rev. 965, 976 (2016).
[31] Id.
[32] Id.
[33] Thomas H. Neale, Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis, Congressional Research Service (2016).
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] John. S. Baker and Anderson Bellegarde Francois, The Twenty-Third Amendment, Interactive Constitution (n.d.), https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxiii/interps/155.
[39] Id.
[40] Electoral College Fast Facts, History, Art, & Archives, United States House of Representatives, https://history.house.gov/Institution/Electoral-College/Electoral-College/ (“The election of the President goes to the House of Representatives. Each state delegation casts one vote for one of the top three contenders to determine a winner.”).
[41] Id.
[42] Id.
[43] Id.
[44] Electoral College Ties, 270 to Win (n.d.), https://www.270towin.com/content/electoral-college-ties/.
[45] Id.
[46] Id.
[47] Id.
[48] Id.
[49] Id.
[50] Electoral College Ties, 270 to Win (n.d.), https://www.270towin.com/content/electoral-college-ties/.
[51] Id.
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