An Elec­toral Col­lege ‘Dooms­day’?

Schol­ars spec­u­late on havoc of 269 tie

The Washington Times Weekly - - Politics - BY JOSEPH CURL

Pres­i­dent Obama, with Vice Pres­i­dent Palin? Pres­i­dent Bi­den? Pres­i­dent Pelosi?!

Call them the “Dooms­day” sce­nar­ios: On Nov. 5, the pres­i­den­tial elec­tion winds up in a elec­toral-col­lege tie, 269-269, the Demo­crat-con­trolled House picks Sen. Barack Obama as pres­i­dent, but the Se­nate, with for­mer Demo­crat Joe Lieber­man vot­ing with Repub­li­cans, dead­locks at 50-50, so Vice Pres­i­dent Dick Cheney steps in to break the tie to make Repub­li­can Sarah Palin his suc­ces­sor.

“Wow,” said long­time pres­i­den­tial his­to­rian Stephen Hess. “Wow, that would be amaz­ing, wouldn’t it?”

“If this sce­nario ever hap­pened, it would be like a scene from the movie ‘Scream’ for Democrats,” said Demo­cratic strate­gist Mary Anne Marsh. “The only thing worse for the Democrats than los­ing the White House, again, when it had the best chance to win in a gen­er­a­tion, but to do so at the hands of Cheney and Lieber­man. That would be cruel.”

Sound im­pos­si­ble? It’s not. There are at least a half-dozen plau­si­ble ways the elec­tion can end in a tie, and at least one very plau­si­ble pos­si­bil­ity — giv­ing each can­di­date the states in which they now lead in the polls, only New Hamp­shire — which went Repub­li­can in 2000 and Demo­cratic in 2004, each time by just 1.5 per­cent — needs to swap to the Repub­li­can col­umn to wind up with a 269-269 tie.

There are cur­rently 10 tossup states, ac­cord­ing to Real­Clear­Pol­i­, which keeps a run­ning av­er­age of all state polls. If Repub­li­can pres­i­den­tial nom­i­nee Sen. John McCain wins Ohio, Vir­ginia, New Hamp­shire and In­di­ana — not at all far­fetched — and Mr. Obama takes re­li­ably Demo­cratic states Penn­syl­va­nia and Michi­gan, and flips Colorado (in which he holds a slight poll lead), with the two split­ting New Mex­ico and Ne­vada, the elec­toral vote would be tied at 269.

Ab­surd? Pos­si­bly, and there is not com­plete agree­ment among con­sti­tu­tional ex­perts on whether a newly elected Congress or the cur­rently sit­ting House and Se­nate would make the de­ci­sion.

So try this sce­nario: The newly elected House, seated in Jan­uary, is un­able to muster a ma­jor­ity to choose a pres­i­dent af­ter a 269-269 tie, but the Se­nate, which is ex­pected to be con­trolled by Democrats, picks Sen. Joseph R. Bi­den Jr. from the Demo­cratic ticket. If the House is still dead­locked at noon on Inau­gu­ra­tion Day, Jan. 20, Mr. Bi­den be­comes act­ing pres­i­dent.

Or try this one on for size: Nei­ther the House nor the Se­nate ful­fills its con­sti­tu­tional duty to se­lect the pres­i­dent and the vice pres­i­dent by Jan. 20, so House Speaker Nancy Pelosi, Cal­i­for­nia Demo­crat, be­comes act­ing pres­i­dent un­til the whole mess is sorted out.

“That would cause all kinds of law­suits: We would have 50 Flori­das, and we might not know who the pres­i­dent is for two years,” said Ju­dith Best, a po­lit­i­cal sci­ence and Elec­toral Col­lege spe­cial­ist at the State Uni­ver­sity of New York in Cort­land.

The ar­chaic sys­tem in the Con­sti­tu­tion was set up in the days of oil lamps and horse­drawn car­riages. Af­ter the pres­i­den­tial vote on the first Tues­day in Novem­ber, elec­tors have un­til the Mon­day af­ter the sec­ond Wed­nes­day in De­cem­ber, this year Dec. 15, to reach the state cap­i­tal, where they cast their bal­lots for pres­i­dent.

The elec­toral vote is then trans­mit­ted “sealed to the seat of the gov­ern­ment of the United States, di­rected to the pres­i­dent of the Se­nate,” ac­cord­ing to the 12th Amend­ment. If there’s a tie, the 1804 amend­ment says, the House of Rep­re­sen­ta­tives “shall choose im­me­di­ately, by bal­lot, the pres­i­dent.”

“The Con­sti­tu­tion says ‘im­me­di­ately,’ ” Mr. Hess said. “It’s that word ‘im­me­di­ately’ that makes me be­lieve it’s got to be the out­go­ing Congress that makes the de­ci­sion, be­cause we know that the Elec­toral Col­lege bal­lots are counted in De­cem­ber.”

But de­spite the de­li­cious pos­si­bil­ity that Mr. Cheney would break a Se­nate tie to cre­ate a Obama-Palin White House, sev­eral other con­sti­tu­tional schol­ars say, for­get the Con­sti­tu­tion. They say the op­er­a­tive — and decisive — ver­biage was set out in U.S. Code Ti­tle 3, Chap­ter 1, Sec­tion 15, in 1934.

“Congress shall be in ses­sion on the sixth day of Jan­uary suc­ceed­ing ev­ery meet­ing of the elec­tors. The Se­nate and House of Rep­re­sen­ta­tives shall meet in the Hall of the House of Rep­re­sen­ta­tives at the hour of 1 o’clock in the af­ter­noon on that day,” the sec­tion says.

That, they say, means the new Congress would de­cide the pres­i­dent and vice pres­i­dent in the event of an Elec­toral Col­lege tie. Here’s where things get dicey, though. Back to the Con­sti­tu­tion, the 12th Amend-

ment: “ [. . . ] in choos­ing the pres­i­dent, the votes shall be taken by states, the rep­re­sen­ta­tion from each state hav­ing one vote.” That means that a state’s en­tire House del­e­ga­tion gets just one vote each — Cal­i­for­nia, with 53 House mem­bers, would get one vote; Alaska, with its one rep­re­sen­ta­tive, would get one vote.

Florida, for in­stance, has 16 Repub­li­cans and nine Democrats. That means the del­e­ga­tion would (al­most cer­tainly) vote 16-9 for Mr. McCain, while Colorado, with four Democrats and three Repub­li­cans, would vote 4-3 for Mr. Obama.

In the cur­rent House, Mr. Obama would win — 27 del­e­ga­tions have a ma­jor­ity of Democrats, 21 have a ma­jor­ity of Repub­li­cans, and two states, Kansas and Mr. McCain’s home state of Ari­zona, are evenly split.

But those num­bers will change Nov. 4, and Paul Sracic, as­so­ciate pro­fes­sor in the depart­ment of po­lit­i­cal sci­ence Youngstown State Uni­ver­sity in Ohio, said they could change dra­mat­i­cally. Of the 27 state con­gres­sional del­e­ga­tions with a ma­jor­ity of Democrats, 25 of them would switch to dead­locked or Repub­li­can con­trol if two or more seats change to Repub­li­can.

At least 26 state del­e­ga­tions in the House must agree be­fore the next pres­i­dent can be cho­sen. But even if Democrats main­tain a ma­jor­ity, there would be pres­sure on Demo­cratic del­e­ga­tions to vote Repub­li­can in states where vot­ers chose Mr. McCain.

It took 36 bal­lots in the House to se­lect Thomas Jef­fer­son as the third pres­i­dent af­ter the 1800 elec­tion ended in a 73-73 tie. There was so much an­i­mos­ity af­ter that elec­tion that Aaron Burr, elected vice pres­i­dent, faced off in a duel with Alexan­der Hamil­ton, who had thrown his sup­port be­hind Jef­fer­son. Burr shot Hamil­ton dead in a duel.

The num­ber of elec­tors, 538, is equal to the num­ber of se­na­tors — 100 — and rep­re­sen­ta­tives — 435 — in the Congress, plus the three elec­tors added in 1961 when the 23rd Amend­ment gave the District a say in U.S. pres­i­den­tial elec­tions. Thus, there have been 10 pres­i­den­tial elec­tions in which a 269-269 tie was pos­si­bly, but it has never occurred.

“The prob­a­bil­ity of a tie in 2008 is about 1.5 per­cent, which is slightly higher than we cal­cu­lated at about the same time back in 2004,” said Mr. Sracic, who en­listed the help of the uni­ver­sity’s math depart­ment to come up with a pos­si­ble 1,024 com­bi­na­tions with the cur­rent 10 states now con­sid­ered tossups.

“What re­ally strikes you is how easy it would be for a tie to oc­cur. Take the 2004 map and switch Iowa, New Mex­ico and Colorado into the Blue col­umn, which is what the poll num­bers in­di­cate. Then, take New Hamp­shire and give it to McCain, which is what two re­cent polls sug­gest is go­ing to hap­pen. There is your tie.”

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