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Free & Fair

What if there is a 269-269 tie … and a faithless elector?

As of this writing, there is some chance that the Electoral College could end up in a 269-269 tie, with uncertainty on which candidate ultimately would end up ahead in the national popular vote. Under the Twelfth Amendment, a 269-269 tie goes to the U.S. House of Representatives, with each state having one vote, and a majority of all states (26) necessary to elect a president. In other words, California and Wyoming—despite their widely divergent populations—each have one vote in this special Twelfth Amendment procedure, which has not been used since 1824.

 

With all the recent talk about the possibility of faithless electors, one begins to ask the question: would it be possible for a faithless elector on December 19 to shift the Electoral College vote to 270-268, thereby avoiding the election going to the House of Representatives under the Twelfth Amendment? I explored that question as part of a conversation with the National Law Journal’s Marcia Coyle.

 

What follows are just tentative thoughts, designed to aid analysis, rather than anything close to a settled judgment. It seems to me that the concept of a faithless elector is somewhat different in the context of a 269-269 tie, where neither candidate has claim to an Electoral College victory, than in the context of even the narrowest possible of outright Electoral College wins, 270-268—where the candidate who reaches 270 based on winning the popular votes in enough states does have a claim to being the Electoral College winner. In that scenario, a faithless elector would take a candidate down from 270 to 269, thereby sending the election to the House, when it otherwise would not go there. That is different—from a constitutional and democratic governance perspective—than a faithless elector who takes a 269-269 tie and converts it to a 270-268 win, in order to prevent the election going to the House of Representatives with its antiquated one-state-one-vote provision. In this situation, the faithless elector could be basing the decision on the belief that it is more consistent with the Constitution to have the Electoral College outcome line up with the national popular vote, rather than having the election decided on a one-state-one-vote basis. (And this point is without even considering whether the gerrymandering of congressional districts would have any effect on how the one-state-one-vote procedure would play out.)

 

To be sure, in this most unpredictable of presidential elections, it is even conceivable that an elector wanting to be “faithless” in this particular way might be foiled in this regard. Starting with the 269-269 tie, that elector could try to get it to 270-269. But another faithless elector, like one of the two who have signaled intents to be faithless in Washington State, could bring the 270 number back down to 269 to 269, thereby sending the election to the House of Representatives after all. One thing, however, would be different with this scenario. If the outcome of more than one faithless elector were, for example, 269 for Clinton, 268 for Trump, and just 1 for Someone Else, the House by its one-state-one-vote procedure would be constitutionally entitled to chose that Someone Else, rather than either Clinton or Trump.

 

Enough speculation for now. None of this may come to pass, depending upon the outcome in the remaining states “too close to call” as of this writing. But even with it being a small possibility, it seems worth beginning to think about in case the circumstance actually does arise. Maybe it’s not true that “stranger things have already happened” in this presidential election year, but it certainly has been plenty strange enough already.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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