What If the Presidential Election Is Tied?

Nov. 4, 2008 -- Here's a fun or, depending on your perspective, frightening Electoral College game to play.

There are 538 Electoral College votes at stake Tuesday to determine who will be the next president. It takes a majority, 270, to be elected. But what if it ends up tied 269-to-269? And how realistic is that?

Any pollster or pundit would probably say the chances of a 50-50 split are astronomical. But let's spin it out anyway.

Let's say Barack Obama wins Nevada, New Mexico and Iowa, all states President Bush won in 2004. And let's say he wins all of the states Sen. John Kerry won in 2004. That adds up to 269 electoral votes.

While such an outcome is unlikely, it's not all that far-fetched. And to make it even more interesting, there are a couple of wild cards in the deck. They are the states of Maine and Nebraska, the only two states that do not give all their Electoral College votes to the candidate who wins that state.

Maine, with four electoral votes, apportions one each to the winner of its two congressional districts; the other two go to whoever wins the state overall.

Nebraska, with five electoral votes, gives two to the state winner and one each to the winner of each of its three congressional districts.

In Maine, Obama leads by a big margin in polls. But the McCain campaign had targeted its second congressional district as a place where McCain might be able to eke out a win and a grab a single elector.

McCain has a huge lead in Nebraska, but the Obama campaign is eyeing the congressional district that includes Omaha, which has a large black and Latino population. It has long had a campaign office in that district.

Let's play this out further and assume that Nebraska and Maine end up going all for one. Now no one has won an Electoral College majority. What then?

Obviously, in their infinite wisdom, the Founding Fathers thought of that possibility. There is a mechanism for resolving it and it seems to favor Obama. Here's what happens in the event of a 269-269 tie:

According to the 12th Amendment of the U.S. Constitution, the newly elected House of Representatives votes. This would happen in December after the electors cast their ballots (by the way, there's nothing requiring an elector to vote for the candidate whom he or she was chosen to represent). The House vote would not be a straight-up-and-down majority wins, as it is for legislation.

Each state's delegation votes, so it takes 26 states to elect the new president. This would tend to favor Obama because Democrats already hold a majority in the House and are expected to expand it in this year's election.

But even this tie-breaker has some obvious potential problems. What if the vote is 25-25? Or what happens if a state has an even number of Democratic and Republican representatives and each votes for his party's nominee? Well, if no one gets a majority of states, they keep voting until someone cracks.

But if the impasse were to continue right up to Inauguration Day? No, President Bush would not remain in office past the expiration of his term on Jan. 20, 2009. Rather, the Senate would decide between the two vice presidential candidates and elect that person -- Joe Biden or Sarah Palin -- acting president until the House makes up its mind and chooses between Obama and McCain.

What if the Senate, with 100 members, splits down the middle and fails to choose an acting president? Article 3 of the 20th Amendment empowers Congress to elect an acting president by legislation, "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."

Let's hope it doesn't come to that.