What Happens if the Electoral College Ties?

Photo by Element5 Digital from Pexels
Photo by Element5 Digital from Pexels

If there is a tie in the Electoral College, the race for president gets sent to the House of Representatives, where the top three candidates are decided by each state’s delegation as a statewide block. As a state, the representatives decide on a candidate to vote for and, after much politicking, one candidate eventually gets a majority of states and becomes president. For vice presidents it’s a little simpler: it’s only the top two candidates, each senator gets a vote, and whoever gets the majority of Senate votes wins.

Now that that’s been dealt with, how did we get to this odd scenario? And are there any ways that it can be made odder?

A LITTLE BACKGROUND

First, as a matter of clarification, the result in November is just a guideline; the real action is in December, when the Electoral College votes. While it would be a political crisis if the Electoral College completely disregarded the will of the people, it’s not impossible. Only around half of the states plus Washington, D.C. have laws that explicitly say an elector has to vote for their state’s winning candidate. And among those states the laws vary wildly.

In North Carolina, for example, failure to vote for the correct candidate results in a $500 fine and the elector is automatically removed, doesn’t have a vote recorded, and a new elector is put in place. In New Mexico, it’s a fourth-degree felony for an elector to vote for a different candidate, but there’s no provision for canceling the vote. And Ohio just has it as a vague "it’s illegal." The Supreme Court has never ruled on the constitutionality of these restrictions, as it has never really mattered and electors tend to be party faithful anyway. But for the following scenarios, it’s important to keep in mind:

Our current system is the result of the 12th Amendment, which grew out of the disastrous election of 1800. Article II of the Constitution says that each elector needs to cast two votes and the candidate with the most electoral votes wins, while second place gets the vice presidency. In 1800, the Federalist Adams/Pinckney ticket was up against the Democratic-Republicans’ Jefferson/Burr. The Federalists recognized the inherent problem with the then-current rules and gave one electoral vote to John Jay (who wasn’t even a candidate), so that Adams would have one more vote than Pinckney. However, the victorious Democratic-Republicans messed that part up and gave Jefferson and Burr the same number of votes, sending it to the House to decide which one of them would be president.

Thirty-six ballots and a truly ridiculous amount of politicking later, Jefferson was finally elected president and Burr vice president. But the flaws in the Constitution were beginning to show, and the 12th Amendment was ratified just in time for the next presidential election. The 12th Amendment changed it so that electors voted for a president and a vice president, as opposed to two presidential ballots. It also created the modern rules for tie-breaking.

WHAT HISTORY CAN TELL US

In the entire history of the country, the Electoral College has only failed to come to an agreement twice, once for president and once for vice president. Weirdly, however, they were in two different elections.

The 1836 election pitted Martin Van Buren against a supergroup of Whig opponents specially picked to appeal to specific regions. The plan was to prevent Van Buren from getting a majority in any region so that the House would make the decision. It didn’t work and Van Buren won; but when it came time to count the electoral votes, Van Buren’s running mate, Richard Johnson, was one vote short of a majority. The entire Virginia delegation had cast their presidential votes for Van Buren and their vice presidential ballots for a different candidate. The election went to the Senate, which picked Johnson in a party line vote.

In 1824, Andrew Jackson won a plurality in both the popular vote and the Electoral College, but not a majority. When it got to the House, they chose second place John Quincy Adams to be president. Accusations immediately started flying that Adams had secured the support of Speaker of the House Henry Clay, who had come in fourth in the race and was thus ineligible to be chosen, in exchange for an appointment as Secretary of State. As for the vice presidency? John Calhoun has been described by one historian as “everybody’s second choice” and won Electoral College votes from all sides of the political spectrum, dominating his vice presidential opponents.

WHAT IF THERE’S NO TIE ON ELECTION DAY?

Waking up on Wednesday morning, the newspapers blare "We have a winner!" But that’s not the end of the story.

After the contentious 2000 election, with Bush sitting on 271 electoral votes and Gore with 267, there were reports and conspiracy theories of Gore and Democrat consultants trying to flip three electors (for their part, the Gore campaign disavowed the endeavor). This didn’t happen (and actually one Gore elector abstained, giving Gore 266 votes), but the fact that it was even tossed around as an idea shows that the Electoral College could in theory make up their own minds regardless of the actual results.

In 1988, it was George H.W. Bush vs. Michael Dukakis and his running mate Lloyd Bentsen. Bush won in a landslide, but one elector flipped their ballot and voted Bentsen president and Dukakis vice president, giving Bentsen one electoral vote for president (the elector, Margarette Leach of West Virginia, did it to protest the Electoral College).

It was inconsequential because the vote was a landslide. But what if it wasn’t and the election was tied?

The Constitution says “if no person [has an electoral majority], then from the persons having the highest numbers not exceeding three on the list of those voted for as president” shall the House pick the president. In a no-Electoral College-majority election, the Dukakis-Bentsen flip would have resulted in the House choosing between the top three presidential electoral vote getters—Bush, Dukakis, and Bentsen. In that case, it wouldn’t be impossible for the House to decide Bentsen as winner. And although constitutional scholars doubt whether the system would allow such a scenario to take place, Bentsen could in theory also be a vice presidential candidate (the 12th Amendment has the Senate pick between the top two vice presidential vote-getters, so Dukakis would be out).

The Electoral College doesn’t need to go down the route of people anyone has actually “voted for,” either. In 1972, one elector cast a vote for the Libertarians, despite them only getting 3674 popular votes in the entire country. But at least they were running for president. In 1976, the two main candidates were Gerald Ford and Jimmy Carter, with Bob Dole and Walter Mondale as the respective VPs. Carter/Mondale walked away from election night the winners with 297 electoral votes to Ford/Dole’s 241. But after the Electoral College met, Ford only got 240. This wasn’t a repeat of Gore’s missing electoral vote or the Dukakis flip—Dole still got 241.

One Washington state (which Ford won) elector voted Ronald Reagan for president, Dole for vice president (Reagan would later tell the elector, Mike Padden, “Boy, we sure gave 'em a go in '76. It came so close”), which illustrates that the Electoral College can pick anyone. And Leach, the Bentsen elector who used her vote as a protest in 1988, would later echo this point by saying, “When I got home I said to myself I should have voted for Kitty [Dukakis]. If 270 women got together on the Electoral College we could have had a woman President.”

10 Rad Gifts for Hikers

Greg Rosenke/Unsplash
Greg Rosenke/Unsplash

The popularity of bird-watching, camping, and hiking has skyrocketed this year. Whether your gift recipients are weekend warriors or seasoned dirtbags, they'll appreciate these tools and gear for getting most out of their hiking experience.

1. Stanley Nesting Two-Cup Cookset; $14

Amazon

Stanley’s compact and lightweight cookset includes a 20-ounce stainless steel pot with a locking handle, a vented lid, and two insulated 10-ounce tumblers. It’s the perfect size for brewing hot coffee, rehydrating soup, or boiling water while out on the trail with a buddy. And as some hardcore backpackers note in their Amazon reviews, your favorite hiker can take the tumblers out and stuff the pot with a camp stove, matches, and other necessities to make good use of space in their pack.

Buy it: Amazon

2. Osprey Sirrus and Stratos 24-Liter Hiking Packs; $140

Amazon

Osprey’s packs are designed with trail-tested details to maximize comfort and ease of use. The Sirrus pack (pictured) is sized for women, while the Stratos fits men’s proportions. Both include an internal sleeve for a hydration reservoir, exterior mesh and hipbelt pockets, an attachment for carrying trekking poles, and a built-in rain cover.

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3. Yeti Rambler 18-Ounce Bottle; $48

Amazon

Nothing beats ice-cold water after a summer hike or a sip of hot tea during a winter walk. The Yeti Rambler can serve up both: Beverages can stay hot or cold for hours thanks to its insulated construction, and its steel body (in a variety of colors) is basically indestructible. It will add weight to your hiker's pack, though—for a lighter-weight, non-insulated option, the tried-and-true Camelbak Chute water bottle is incredibly sturdy and leakproof.

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4. Mappinners Greatest 100 Hikes of the National Parks Scratch-Off Poster; $30

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The perfect gift for park baggers in your life (or yourself), this 16-inch-by-20-inch poster features epic hikes like Angel’s Landing in Zion National Park and Half Dome in Yosemite National Park. Once the hike is complete, you can scratch off the gold foil to reveal an illustration of the park.

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5. National Geographic Adventure Edition Road Atlas; $19

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Hikers can use this brand-new, updated road atlas to plan their next adventure. In addition to comprehensive maps of all 50 states, Puerto Rico, Canada, and Mexico, they'll get National Geographic’s top 100 outdoor destinations, useful details about the most popular national parks, and points on the maps noting off-the-beaten-path places to explore.  

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6. Adventure Medical Kits Hiker First-Aid Kit; $25

Amazon

This handy 67-piece kit is stuffed with all the things you hope your hiker will never need in the wilderness. Not only does it contain supplies for pain, cuts and scrapes, burns, and blisters (every hiker’s nemesis!), the items are organized clearly in the bag to make it easy to find tweezers or an alcohol wipe in an emergency.

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7. Hiker Hunger Ultralight Trekking Poles; $70

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Trekking poles will help increase your hiker's balance and stability and reduce strain on their lower body by distributing it to their arms and shoulders. This pair is made of carbon fiber, a super-strong and lightweight material. From the sweat-absorbing cork handles to the selection of pole tips for different terrain, these poles answer every need on the trail. 

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8. Leatherman Signal Camping Multitool; $120

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What can’t this multitool do? This gadget contains 19 hiking-friendly tools in a 4.5-inch package, including pliers, screwdrivers, bottle opener, saw, knife, hammer, wire cutter, and even an emergency whistle.

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9. RAVPower Power Bank; $24

Amazon

Don’t let your hiker get caught off the grid with a dead phone. They can charge RAVPower’s compact power bank before they head out on the trail, and then use it to quickly juice up a phone or tablet when the batteries get low. Its 3-inch-by-5-inch profile won’t take up much room in a pack or purse.

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10. Pack of Four Indestructible Field Books; $14

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Neither rain, nor snow, nor hail will be a match for these waterproof, tearproof 3.5-inch-by-5.5-inch notebooks. Your hiker can stick one in their pocket along with a regular pen or pencil to record details of their hike or brainstorm their next viral Tweet.

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Can the Electoral College Reverse the Results of an Election?

Tumisu, Pixabay // Public Domain
Tumisu, Pixabay // Public Domain

Every four years, people talk about the oddness of the Electoral College. And just like 2000's popular vote/Electoral College mismatch, after the 2016 election, some citizens attempted to flip electors from Donald Trump to either Hillary Clinton or a third candidate (if enough electors go to the third candidate, the House would then have to choose from among the top three).

Which leads to the question: Can the Electoral College actually change the results of the election? It’s an awkwardly worded question for a very specific reason, and the answer is no. But for the question people think that they’re asking—could the Electoral College reverse the results of the election?—the answer is yes, although it’s profoundly unlikely.

The reason it’s an oddly worded question is that the November election is not a vote for president. The vote is for a set of electors who will then go and vote for the president in December. Therefore, the electors cannot change the results of the election since they’re the ones being elected. In one of the Federalist Papers, Alexander Hamilton explained the reasoning for forgoing direct democracy, as well as why they avoided letting politicians make the decision. Largely, the problem was that neither the public nor the politicians could be trusted. Hamilton wrote:

“The Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.”

There were other issues the Founding Fathers were trying to avoid as well, such as the risk of a smorgasbord of regional candidates. As historian Jack Rakove told Stanford News in 2012, “it would become truly difficult to produce a popular majority with a field of favorite sons.”

More controversially, the Founding Fathers faced the issue of slavery. Because enslaved people couldn’t vote, a direct popular vote would weaken the power of the South. Thanks to the three-fifths compromise, however, the slave states had greater power under an electoral system than under a direct voting system, because enslaved people couldn’t vote but did count for the number of representatives. And more representatives meant more electors (the number of electors equals the state’s number of representatives plus the number of senators). As James Madison said in 1787:

“There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to fewest objections.”

But objections to the elector’s powers appeared as soon as races got competitive. In 1796, Pennsylvanian Samuel Miles became the first known faithless elector when, despite being chosen as a Federalist, he voted for opposition candidate Thomas Jefferson. In a letter to the Gazette of the United States, a disgruntled Pennsylvania voter asked, “What, do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I choose him to act, not to think.”

SO WOULD IT WORK?

As we have written about before, in about half the states plus Washington, D.C., electors are required to vote for their state’s popular vote winner—some states to the point that any attempt to defy this would forfeit the elector’s position. They’re extreme, but in the controversial 1952 Ray v. Blair case, the Supreme Court ruled that requiring pledges from electors to vote for a particular candidate was constitutional. But the question that remains unanswered is whether any punishment for breaking those pledges is constitutional. It’s never mattered, but would quickly become a critical issue if electors defected en masse.

Regarding the 2016 election, others say that because Hillary Clinton had already conceded, this strategy wouldn’t have worked. But there’s no requirement that an elector vote for a viable candidate. In 1976, one of the electors voted for Ronald Reagan, who hadn’t even won his party’s primary. In 1956, another elector voted for a local circuit court judge rather than Adlai Stevenson.

A stronger issue standing in the way is how electors are chosen. Generally, in spring and summer, each state’s political parties nominate a slate of electors from a list of party faithful. Any attempt to get defections would require electors to go against a party that chose them specifically for their loyalty.

The Ray v. Blair decision gave one of the most famous dissents in Supreme Court history, where Justice Jackson wrote, “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices.” While it would be considered highly irregular and is highly unlikely, the possibility is there. And will remain there until January 6, 2021, when the votes are officially counted before a joint session of Congress.

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