Yet another problem with the electoral college comes into view once you start toying with various plausible winning combinations for the Democratic candidate in 2008. Kerry won nineteen states, 18 of which were also carried by Gore. The two states in which Kerry's deficit was smallest, both in terms of raw votes and percentage, were New Mexico and Iowa: he received more than 49% of the popular vote in each. If you put both of them in the enlightened column, along with the nineteen states (and the District of Columbia) won by Kerry, you edge up to 264 electoral votes, which is six less than the 270 needed to win and five less than the 269 needed to keep the Republican from getting 270. Kerry's third narrowest defeat, measured by difference in total votes received, was in Nevada. (Ohio was closer in terms of percentage.) Since Nevada has five electoral votes, the question about what happens in the event of a 269-269 tie is of more than just theoretical interest.
The standard answer to the question is that "the House of Representatives decides," which is true so far as it goes. The details, set out in the Twelfth Amendment, do not however provide for each representative to have one vote. Instead, "in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorom for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice." So you see that the details of the electoral college tie-breaker magnify the undemocratic nature of the electoral college itself: when, for example, the votes of the representatives from California (which currently sends 34 Democrats and 19 Republicans to the House) and Wyoming (which has one at-large representative, a Republican) are tallied, there would be around 34 for the Democrat and around 20 for the Republican, but the real score would be 1 to 1, and both candidates would need a majority from 25 of the remaining 48 state delegations to be "elected."
Since "a majority of all the states shall be necessary to a choice," it is easy to see that the tie-breaker too might easily fail to deliver a verdict. A straight party line vote in the House, for example, means that any state with a delegation split evenly between Republicans and Democrats (currently there are two, Arizona and Mississippi) would advance neither candidate toward the required majority in 26 state delegations. What then? The Twelfth Amendment takes up the issue:
And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President. . . .
But who is the Vice-President? When the electoral college has rendered no verdict, the Twelfth Amendment provides for the Senate to select the Vice-President, and a simple majority of Senators suffices for the purpose. It therefore appears that the running mate of one presidential candidate could be the Vice-President, and the acting President, while the stalemate over the election of the President dragged on in the House.
The final component of this Rube Goldberg machine is contributed by the Twentieth Amendment, which states, in the relevant part:
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
The details of this scheme are horrible, partly because they are vague. The potential for mischief and chaos, and a consequent crisis of legitimacy, is considerable. I will say it again: the president should be elected by the same means employed to elect everyone else who runs for public office, from governor to senator to state legislator to county commissioner and city council--that is, he (or she) should be chosen by the direct popular vote of all the citizens.
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