By Reinhard von Hennigs
Right now, the United States ended an unprecedented election season. During the election process was hard, if not impossible, to escape the seemingly endless amount of political ads, posts, and yard signs telling you whom to vote for. Furthermore, it seems that the USA were more divided than ever.
I have been in the USA for close to 25 years and remember a few elections. The 2000 election with the litigation and the Supreme Court decision Gore v. Bush and creating the word “dimpled chads” are still as present as in 2000. Also, six elections later this year, more than ever, the Electoral College is relevant. The question “What if we don’t get our answer that night?” was on my mind over the last few weeks and I started to think: What if there’s an Electoral College tie?
In America, the President of the United States is not chosen by the voters but rather chosen by the Electoral College. The Electoral College votes on behalf of their state. There are 538 Electoral College votes, and they are distributed across the states, giving higher population states more votes and the lower population states fewer votes. The entirety of a state’s Electoral College votes goes to the candidate who won the majority of the votes in that state. To win the Presidency of the United States, it takes 270 Electoral College votes to win. With many simulations being run about how states could swing in this election, people have noticed that the possibility of a 269-to-269 Electoral College tie is real.
So What Would Happen?
If there is a tie on election night, there is still a possibility that the vote could change. An Electoral College member could flip the other way and vote for the other candidate. It is called a “faithless elector,” and although it is illegal in some states, it is only frowned upon in others. If this were to happen, it would be on December 14th, when the Electoral College meets to cast their votes.
So What is a “Faithless Elector”?
A faithless elector is not uncommon. In the history of the United States, there have been a total of 165 instances of faithlessness as of today. The largest event was in the year 1872 when Horace Greeley died after Election Day but before the Electoral College convened. Sixty-three voted not as they were “told” to vote for. Nearly all have voted for third party candidates or non-candidates instead of switching their support to a major opposing candidate. So a faithless elector votes at the Electoral College different from the party assignment.
Let us go back in history to the 1836 election. Virginia’s entire 23-man electoral delegation faithlessly abstained from voting for victorious Democratic vice presidential nominee Richard M. Johnson. This caused Johnson to fall one electoral vote short of a majority. As a result, the vice-presidential election was in the U.S. Senate for the only time in American history. The presidential election itself was not in dispute because Virginia’s electors voted for Democratic presidential nominee Martin Van Buren as pledged. The U.S. Senate ultimately elected Johnson as vice president. This vote was conducted along the party lines.
Faithless elector laws
The United States Constitution does not specify a notion of pledging. It could be argued that pledging is contrary to the idea of the framers who created the Electoral College. In addition, there is no federal law or statute binding an elector’s vote to anything. Some states, however, created pledging laws prohibiting the faithless elector. The Supreme Court upheld these state laws in its 1952 ruling Ray v. Blair. More recently, in 2020, the Supreme Court ruled in Chiafalo v. Washington that states are free to enforce laws that bind electors to vote for the winner of the popular vote in their state.
This year for the 2020 election, 33 states and the District of Columbia have laws against faithless electors, though the laws in half of these jurisdictions have no enforcement mechanism. The State of Washington implemented as the first state a fine for faithless electors after the 2016 election in the wake of that state having four faithless elector votes. In lieu of penalizing a faithless elector, some states such as Colorado, Michigan, and Minnesota specify a faithless elector’s vote to be voided. Assuming there is a 269-269 split and there is no faithless elector, what comes next?
Congress Picks
The decision about the President is then in the hands of Congress. The newly elected 117th Congress meets on January 6th to count the Electoral Votes. If there is still a tie, or neither candidate gets to 269 (because a third-party candidate takes some votes), then the House of Representatives and the Senate will elect the President and Vice President. The House chooses the President, and the Senate chooses the Vice President. This vote takes place after the new members of Congress are sworn in from this upcoming election so majorities could switch.
In the House of Representatives, each state gets one vote each to pick the next President of the United States. There are 50 votes, so 26 are needed to win. The 100 Senators get to vote for the Vice President and need a 51 vote majority to win.
If the House of Representatives vote is still tied at 25-to-25 by January 20th, when the President is supposed to be sworn in, then the Vice President assumes President’s role until the House of Representatives picks a President. If there is no Vice-President possible due to the split in the Senate? Then the Speaker of the House will be the acting President.
It will more than likely never go that far, but the constitution is written to make sure that we know what to do just in case it does happen. Nevertheless, what is “likely” these days?
The Author
Reinhard von Hennigs (LL.M. McGeorge) is the Chairman and Founder of BridgehouseLaw LLP, a North Carolina-based law firm with offices in the United States, Canada, and Germany. He is admitted to practice law as an Attorney in the USA (North Carolina), Germany (Rechtsanwalt), Georgia (Foreign Law Consultant) as well as with the United States Supreme Court.