What Happens if the Electoral College Results in a Tie?

As the 2024 U.S. presidential election cycle enters its final stage (post Labor day, post election), voters, candidates, and their campaigns are ferociously focused on key battleground states and the dynamics of an increasingly polarized electorate. Millions, if not billions, of dollars are being used to target hundreds, if not tens, or thousands of voters.

The race between Vice President Kamala Harris and Republican Donald Trump has heightened anticipation, especially in pivotal swing states like Pennsylvania, Wisconsin, Michigan, North Carolina, Georgia, and Arizona. With both parties rallying their bases and campaigns pouring resources into narrow-margin states, the possibility of an Electoral College tie – 269 to 269 – looms as an unlikely but intriguing scenario. Understanding what happens in the event of a tie sheds light on a constitutional process few Americans are contemplated.

How the Electoral College Works

The U.S. presidential election is determined by the Electoral College, a system where each state is allocated a number of electors based on its representation in Congress – senators plus representatives. To win the presidency, a candidate must receive a majority of electoral votes, or 270 out of 538. Each state’s electors are awarded to the candidate who wins the popular vote in that state, with the exception of Maine and Nebraska, which allocate electors by congressional district. That, most people are aware of.

A 269–269 tie, however, can happen if both candidates win an equal number of electoral votes. For example, this could occur if one candidate wins traditionally Democratic states like California and New York, while the other wins Republican strongholds like Texas and Florida, with battleground states splitting evenly between them. If no candidate reaches the 270-vote threshold, the U.S. Constitution prescribes a contingency procedure to decide the presidency.

The Role of the House of Representatives

In the event of an Electoral College tie, the election moves to the House of Representatives, as outlined in the 12th Amendment of the Constitution. This is often referred to as a “contingent election.” However, unlike a regular vote in the House where each representative casts an individual vote, the contingent election works differently. Each state delegation gets one vote, and a majority – 26 out of 50 – is required to elect the president.

This process can result in outcomes that do not directly align with the popular vote or even the number of representatives a party holds. For example, a state like Wyoming, with a small population and just one representative, gets the same weight as California, which has 52 representatives. Each state’s delegation is determined by the political makeup of its representatives, meaning even states with a mixed partisan composition must unify their delegation for a single vote.

If the House fails to elect a president by January 20, the sitting vice president (who has quite a stake in this election remember…)– or the next in the line of succession – becomes acting president until a decision is reached.

The Role of the Senate in Choosing the Vice President

While the House decides the presidency, the Senate chooses the vice president in a contingent election. Each senator casts one vote, and a majority – 51 out of 100 – is needed to elect the vice president. This process could lead to a split government where the president and vice president come from different parties, a rare but constitutional possibility.

For instance, if the Democrats hold a slim majority in the Senate – a very tough task in itself – they could elect Kamala Harris as vice president, even if Donald Trump wins the presidency through the House. Conversely, if the Republicans control the Senate, they could choose a Republican vice president to serve under a Democratic president. Imagine that.

Strategic Implications

Given the state-based nature of the House vote, a contingent election could heavily favor the Republican Party, even in an election where the Democrats hold a majority of House seats overall. Currently, Republicans control a majority of state delegations, especially in less populous states where they hold a strong political presence. This means that even if Democrats win the popular vote or hold more seats in the House, Republicans could still have the upper hand in a contingent election scenario.

However, this dynamic could shift based on the outcomes of the 2024 congressional races, which will determine the composition of state delegations. If Democrats were to flip control of several key state delegations, they could increase their odds of winning in the event of a tie.

The Political Fallout of a Tie

An Electoral College tie would almost certainly deepen political divisions and could lead to widespread uncertainty and legal challenges. The 2020 election saw numerous lawsuits and contested results, and a 2024 tie would likely escalate these tensions further. Public trust in the electoral system could erode if voters perceive the process as unfair or unrepresentative, particularly if the contingent election results in a president who lost the popular vote. It could, quite realistically, lead to mass violence, almost certainly being instigated from the Trump campaign.

Moreover, a tie would likely intensify partisan maneuvering, with both parties focusing on swaying House delegations and Senate votes. The period between Election Day in November and Inauguration Day in January could become a battleground, quite literally.

Historical Precedents

While an Electoral College tie is rare, it has happened before. The most famous example occurred in 1800, when Thomas Jefferson and Aaron Burr each received 73 electoral votes. The election was decided by the House of Representatives after 36 rounds of voting, with Jefferson ultimately emerging victorious. A more recent, though less dramatic, case occurred in 1824 when no candidate received a majority of electoral votes, and the House selected John Quincy Adams over Andrew Jackson, despite Jackson winning the popular vote.

Since then, electoral reforms, like the 12th Amendment, have clarified some aspects of the process, but the fundamental mechanism of a House-decided election remains intact.

Conclusion

An Electoral College tie remains a highly unlikely outcome, but it’s not impossible, especially in an election as closely contested as the 2024 race is shaping up to be. If the race does end in a tie, the U.S. House of Representatives and Senate would be thrust into the spotlight, deciding the next president and vice president through a process many Americans are unfamiliar with. While this contingency is built into the Constitution, it underscores the tension between democratic ideals and the unique structure of the U.S. electoral system.