President Trump & Vice President Warren?
Or President Clinton & Vice President Gingrich?
There are several plausible scenarios that would give Hillary Clinton and Donald Trump 269 electoral votes each—both one short of the required 270.
In one swing-state scenario, Clinton could win Ohio, New Hampshire, and Wisconsin, while Trump could carry Florida, North Carolina, Virginia, Colorado, Nevada, and Iowa.
It happened before
It wouldn’t be the first time there was a tie in the Electoral College.
A tie first occurred in 1800. The tiebreaking vote by the House chose Democratic-Republucan Thomas Jefferson as president over Federalist Aaron Burr —a pairing so awkward (they hated each other and were diametrically opposed ideologically. Jefferson had Burr tried for treason. He was acquitted) that the nation quickly passed a constitutional amendment, the 12th Amendment, to change the system to allow electors to vote separately for president and vice president.
In 1824, there wasn’t a 50-50 tie, but a split among four candidates meant that no one received the required majority, so the election went to the House. In that case, although Andrew Jackson had won the popular vote, the House selected John Quincy Adams as president.
Additionally, in 1837 the vice presidential candidates did not reach a majority in the Electoral College, so the vote for vice president went to the Senate, where a majority of senators chose the winner.
An internal dispute in the Democratic Party led to contingent election of the Vice President in the Senate. Democratic presidential nominee Martin Van Buren won a comfortable electoral vote majority in the 1836 election, but his controversial running mate, Richard Mentor Johnson, split the vote with an "independent" Democratic vice presidential nominee, thus requiring contingent election. Electoral votes were counted on February 8, 1837, in a joint session of the 24th Congress, and the Senate then immediately returned to its own chamber to elect the Vice President. Since the Senate's choice was limited by the 12th Amendment to the two candidates gaining the most electoral votes (rather than three, as required for presidential contingent elections), it chose between Johnson and his leading Whig opponent, Francis Granger. Procedures adopted by the Senate differed from those of the House in 1825: the roll was called in alphabetical order, at which time each Senator gave the name and voice vote of the person for whom he selected. Johnson was elected in the first round of voting, receiving 33 votes to 16 for Granger.
What would happen?
Although it was first addressed by Article II, if there were a tie in the Electoral College we would follow the process outlined in the 12th Amendment (ratified in 1804): “the House of Representatives shall choose immediately, by ballot, the President” and “the Senate shall choose the Vice-President.”
The catch is that the votes in the House aren’t tallied by each representative: “the votes shall be taken by states, the representation from each state having one vote.” That means that all the representatives within a given state vote as a bloc, and each state has one vote. The majority of votes within that state bloc determine its vote.
The votes in the Senate are cast by the individual senators.
That also means that with an even 50 votes in the House and 50 in the Senate (D.C. doesn’t get a vote, disenfranchised yet again)), there is potential for yet another tie vote. But the 12th Amendment covers that too: “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.” This section was later superseded by the 20th Amendment, which moved the start of the new session of Congress from March to early January.
If the Senate is unable to break a tie for the vice president, according to the Presidential Succession Act of 1947, the Speaker of the House serves as acting president.
Electors officially cast their votes in December, and the electoral votes are tallied in a joint session of Congress in January.
Who would win?
It would be the newly elected Congress that makes the tiebreaking vote, and with congressional elections equally in play this November it’s impossible to say for sure which way they’would swing. But assuming that the Republicans maintain control of the House and Democrats take control of the Senate, the likely result would be Donald Trump as president and Hillary Clinton's runnng mate as vice president.
Constitutional chaos
Sure, a tie in the Electoral College would further extend what promises to be a discouragingly long, negative campaign. And there would be sharp debates about the proper procedure. But on the bright side, it would be a valuable teaching moment, reminding us that we have to turn to the Constitution for answers.
Shining a spotlight on the Constitution and a possible Trump-Warren administration? Now that’s "winning" combination, NOT!
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