One of the reasons we have nine Supreme Court justices is so that they can come up with a clear verdict. Democracy doesn’t work well in confusion. So it is amazing that we have had the loaded gun of an even number of Electoral College Electors, sitting around, waiting to go off.

The American people don’t elect their president. With our votes, we actually elect “Electors” who participate in “The Electoral College.” Those Electors then vote for whom will be president. In most cases, they vote the same way we sent them to vote, but there are several twists. One is that we have had “unfaithful Electors,” who vote against the will of the people who voted for them. It has happened a number of times—including in 2016.

Another problem with the Electoral College is that, even in the best of circumstances, it does not represent the popular vote. Each state gets the number of votes equivalent to the number of Senators plus the number of Representatives. There are 100 Senators and 438 Representatives, for a total of 538. (That’s how the political analysis site, FiveThirtyEight, got its name.) The problem with that is that States with very small populations get more Electors-per-population than the large States, so their votes are more potent than the votes of larger States.

Also, of course, there’s a winner-take-all system, which awards an entire State’s delegation to a candidate who wins by one vote, whereas a candidate may win by a landslide in the next State, and both could send the same number of Electors to vote for them. That’s how Hillary Clinton won by about three million votes, 2.1% of the total, and yet lost the election. The system was based on a compromise that allowed larger States to talk smaller States into joining the Union. Some people ask if that “bribe” should still be in effect.

It gets crazier. Since there is an even number of Electors, it’s possible that no president will be chosen, even after all the mail-in votes are counted. Of the 538 Electors, 269 may vote for each candidate—leaving us with a tie. And things get crazier, yet.

The president would then be chosen by the House of Representatives, in what is called a “Contingent Election.” Sounds simple, right? Currently, Democrats hold a majority of seats, so you’d think that Biden would be a shoo-in, right? Nope. Because the Contingent Election only allows one vote per State. In the current House, Republicans hold a majority of Federal House seats in 26 states, with 23 Democratic State majorities, and Pennsylvania, split right down the middle.

But that’s the current House. While the Constitution says that the lame duck Congress can make the rules for the Contingent Election, the 12th Amendment fixed it so that the lame ducks could not move the Contingent Election back into their bailiwick. As things now stand, even though the House has a Democratic majority, Trump would be elected in a Contingent Election, because each State gets only one vote, and as noted above, Republicans control more intra-State delegations.

However, the decision is left up to the new House, so if Democrats picked up a few members in a few choice states, Biden would become president.

Two States have even members:
• Michigan 7 Dem vs. 7 GOP (although Amash is now listed as an Independent)
• Pennsylvania 9 Dem vs. 9 GOP
If Michigan OR Pennsylvania flipped just one seat to the Democrats, we would have 25 Republican States, 24 Democratic States, and one tie—giving Trump the election.

But if both States flipped, we would have a tie, 26-26. There is no provision for resolving that tie. Let’s go to the Senate before discussing a Contingent Election tie.

That’s the election for the presidency. Now let’s look at the Contingent Election for vice president. Theoretically, we could once again have a president from one party and vice president from the other. The vice presidency would be decided in the Senate, and since we have an even number of States, it’s conceivable that after having a deadlock in the Electoral College, we could also have a deadlock in the Senate.

There is apparently no provision for resolving such a deadlock, and it wouldn’t go to a different body. Ordinarily, a tie of any vote in the House can be broken by the vote of the vice president, in his role as “president of the senate.” But since the new vice president would not yet be seated, there would be no one to perform that role. What would happen then? Politics.

Although there would be an even number of Senators in a tied Senate, the Senators would not be required to vote with their party. That’s when the negotiating would begin. There are always politicians who are not 100% loyal to their party. The opposing party would look for someone they might shake loose. That could be done by promising a post in the new Congress, an assignment, or maybe that the opposing party would pass the Senator’s pet project. It would only take one crossover vote to change history. And if the Senate were split down the middle, there would be a lot of perks that wouldn’t automatically go to a majority. A Senator might even switch parties, with a promise of getting huge power in a new majority.

This all seems so bizarre. Could it really happen? The answer is, it already has. We’ve actually already had three such instances.

But first, let’s go back to the rules. As noted, the old Congress will make the rules. And, ironically, that could include excluding the largest States!

Would the votes of a majority of a state’s representatives or a mere plurality be required to cast a state’s vote? Requiring majorities may leave large states — where Carter, Reagan, and Anderson might all do well — unable to cast a vote. Plurality voting in the House, on the other hand, runs the same risk as the Electoral College itself: by eking out a victory in enough states, a minority candidate could still out-total an opponent who enjoyed overwhelming support everywhere else.

In 1800, we had a tie between two candidates of the same party! In those days, the names appeared on the ballot separately, so Thomas Jefferson (intended to be the presidential candidate) and Aaron Burr (VP candidate) ended up running against each other.

Jefferson and his running mate, Burr, each received 73 electoral votes. Adams received 65 votes and Pinckney received 64. John Jay, who had not even run, received one electoral vote.

The original wording of the Constitution, which didn’t distinguish between electoral votes for president and vice president, led to the problematic outcome. In the event of a tie in the electoral college, the Constitution dictated that the election would be decided by the House of Representatives. So Jefferson and Burr, who had been running mates, became rivals.

It took several days and 36 ballots to choose between them. (“James Bayard of Delaware claimed that promises made in the pauses between ballots won his vote and the election.”) And Aaron Burr’s enemy, Alexander Hamilton, is rumored to have been instrumental in Burr’s defeat. This problem was solved with the 12th Amendment, which has the president and vice president run as a team, both on one ballot.

But what if a president is not chosen by the January 20 Inauguration Day, when the prior president’s term ends?

If the House does not choose a President by noon on January 20, 1981, then the Vice President becomes Acting President. But if there is no electoral majority for President, there will probably be none for Vice President either, and the Senate will then have to choose the Vice President from among the top two finishers.

It’s unlikely that the House would give up their authority and allow the Senate to choose both president and vice president, so certainly, there would be some kind of deal in the House.

The House has actually only voted for vice president once—in 1837—which was a bit of a soap opera. . .

Virginia’s twenty-three Democratic electors refused to vote for the Democratic vice-presidential candidate, Richard M. Johnson, because he had a longstanding romantic involvement with a black woman. Justice Catron wrote to Andrew Jackson that “the idea of our voting for him is loathed beyond anything that has occurred with us since we have begun to act in concert with our sister states on national policy.”

The Senate elected Johnson, but a President was already in office. If the presidency had gone to the House, and if there had been a deadlock, our Acting President in 1861 would have been Joseph Lane; in 1913, Thomas R. Marshall; in 1925, Charles W. Bryan; in 1949, Alben W. Barkley; in 1961, Lyndon Baines Johnson; in 1969, Edmund Muskie.

What if a president can’t be chosen? We could have an “acting president” for four years!!

One combined effect of the Twelfth and Twentieth Amendments is that the House could go on voting, with interruptions for other business and indeed with an infusion of new members in midterm, for four full years. Imagine an acting presidency subject to termination at any time until the House deadlock is finally broken.

The third tie was in 1824—among four candidates—Andrew Jackson, John Quincy Adams, William Crawford, and Henry Clay. According to the 12th Amendment, only the top three could be considered by the Contingent Election, so Clay threw his support to Adams, who won with 13 States, Jackson with seven, and Crawford with 4.

Adams’ victory shocked Jackson, who, as the winner of a plurality of both the popular and electoral votes, expected to be elected president. By appointing Clay his Secretary of State, President Adams essentially declared him heir to the Presidency, as Adams and his three predecessors had all served as Secretary of State. Jackson and his followers accused Adams and Clay of striking a “corrupt bargain”, which the Jacksonians would campaign on for the next four years, ultimately attaining Jackson’s victory in the Adams–Jackson rematch in 1828.

In the average election, the Electoral College will give a new president credibility, with a win of up to 98 or 99% of Electoral Votes, even though the popular vote has never been above 61.1% of the popular vote (LBJ). However, if things go wrong, they can conceivably go very, very wrong, and in our era of political anger and hatred, electoral confusion would almost certainly lead to violence. It is way past time to remove all of this uncertainty.