This topic is monitored by Moritz Law Professor Peter M. Shane
An Electoral College Tie?
It could happen. The well-respected Cook Political Report lists 10 states with 120 votes as toss-ups. According to this scorecard, the other forty states break evenly for Bush and Kerry, with Bush getting 211 electoral votes and Kerry getting 207. If the toss-up 10 divide themselves as follows, as is quite possible, then two candidates each end up with 269:
An alternative scenario yielding the same tie would be for West Virginia, which Cook classifies as merely "leaning" (as opposed to either "likely" or "solid") Bush, to end up in Kerry's column, while Nevada or New Mexico shifts from Kerry to Bush.
If there is an Electoral College tie, then the newly elected House of Representatives (voting state-by-state) will decide who becomes President, as Peter Shane explains. The Senate, however, chooses the Vice President. Depending upon the outcome of the congressional elections, it is conceivable that the House would choose the candidate from one party, while the Senate selects the candidate from the other.