Christian Smith
An Electoral College tie in November is a very real possibility – and could even end with a new President Trump and a new Vice President Harris sharing power.
The odds are unprecedented in modern history, but the configuration of the country’s electoral system and the fact that difficult elections are likely looming mean it is not impossible. It would take experts calling it a “perfect storm” of exactly the right set of states to split between Trump and President Biden.
“It would lead to a pretty significant, potentially — I won’t call it disastrous — but disruptive election process if it happens,” said Derek Muller, a law professor at the University of Notre Dame. “A low probability scenario, but certainly problematic.”
If neither Trump nor Biden receive the necessary 270 electoral votes, the election would pass to the House of Representatives, which elects the president by giving each state delegation one vote.
A majority of each state’s House delegation would decide who would receive the state’s vote. Therefore, if a majority of a state’s House members are Republicans, Trump would likely receive that vote, and if a majority of a state’s House members are Democrats, Biden would likely receive that vote.
If a state’s delegation is evenly split between the parties and the state’s representatives are deadlocked, the state will not vote.
The Senate would elect the vice president, with each senator casting one vote until a candidate reached 51 votes. So if the Senate majority is Democratic, Harris — who is almost certain to again be the official vice presidential nominee — will likely win, and if Republicans flip the Senate, whoever Trump chooses as his running mate will win.
Any candidate who receives at least 26 votes in the House will win, but if 26 are not reached by Inauguration Day in January, the vice president-elect will serve as acting president until the House resolves the situation, according to the National Archives.
The current House, controlled by Republicans, and the Senate, controlled by Democrats, are indicators of what could happen if the vote went to Congress. But more importantly, the new House and Senate would be responsible for choosing the president and vice president, respectively — not outgoing lawmakers.
Thus, the parties may end up changing positions in an attempt to break a possible tie after November.
“If a tie were to occur, what is important to remember is that it would be broken not by the current Chamber, but by the ‘newly elected’ Chamber, and not by a simple majority of members, but by the ‘state delegations’ within the Chamber,” he said. Christopher Miller, professor of political science at the University of Richmond. “This may come as a surprise to many voters and possibly a source of frustration. It’s yet another reason why voters should pay close attention to the lower races this fall.”
The prospect of a divided administration six months before Election Day isn’t far off, considering the two candidates are tied in national polls, according to The Hill/Decision Desk HQ’s average number of searches.
Research from Quinnipiac University at the end of April found the two tied, a Morning Consult poll from mid-April also found a tie and another mid-April Yahoo News/YouGov poll had the same result.
There is only one potentially realistic electoral scenario in which Biden and Trump would both get 269 electoral votes.
The key swing states that will likely decide the election are Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin. If Trump wins Arizona, Georgia, Nevada and North Carolina, while Biden wins Michigan, Pennsylvania and Wisconsin, both would be close to reaching the 270 threshold.
Crucially, Maine and Nebraska distribute some of their electoral votes to the winner of each of their congressional districts, rather than through a winner-take-all system as other states do. Each state’s 2nd Congressional District is a battleground district that has fluctuated in recent years.
If Trump wins both districts along with the four swing states, the race would be tied at 269 each.
Bruce Mehlman, founder of Mehlman Consulting and former staffer for President George W. Bush, noted that a 269-269 tie could happen and argued that the situation comes with a clear resolution.
“Although somewhat remote, an Electoral College tie is possible and in many ways easier to resolve than a situation with hanging chads and butterfly ballots, competing voter lists, or where Election Day violence may or may not have impacted the final count,” Mehlman said.
The last two elections in U.S. history resulted in no candidate receiving a majority of electoral votes and the House deciding the race. In 1800, Thomas Jefferson and Aaron Burr tied with 73 electoral votes each in a four-way contest, and the House needed 36 votes to eventually elect Jefferson president.
In 1824, Andrew Jackson achieved a plurality of votes in another four-way contest, but fell short of a majority. But the runner-up in the Electoral College and popular vote, John Quincy Adams, managed to gain enough support in the House to win the presidency.
The Trump campaign did not respond to a request for comment on the scenario.
Biden’s campaign, however, largely rejected the polls months before Election Day.
“We don’t see the polls six or seven months from now, the head-to-head numbers, as being any more predictive than a weather report,” Dan Kanninen, swing states director for the Biden campaign, told reporters this week.
A former Biden aide told The Hill that the president’s team would “never outwardly convey a sense of panic about something so specific and theoretical.”
“I don’t believe this specific outcome is being discussed in isolation at this time, but it is likely included in a menu of scenarios for a team of lawyers being considered,” the former aide added.
But some have warned about what a divided presidency between Republicans and Democrats could mean, especially with Trump and Harris together.
“A Trump-Harris presidency? Both would need full-time food tasters,” said Democratic strategist Jim Kessler, executive vice president of policy at Third Way. “In the unlikely event that this were to occur, Trump would ensure that Harris would have the same influence that Mike Pence had when he was vice president: zero.”
And experts warned that a scenario in which Congress decides the presidency could cause public uproar and further diminish faith in the legitimacy of elections, even though this process has been constitutionally established for two centuries.
Trish Crouse, an associate professor of political science at the University of New Haven, said a “proclamation” could happen across the country due to a lack of understanding of how the Electoral College works and many not following the election closely until the outcome.
“There would be a feeling of distrust in the government, thinking something underhanded is going on, when in reality that’s how the system works,” she said.
