What Happens if the Electoral College Ties?

Joe Raedle/Getty Images
Joe Raedle/Getty Images

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 the Bentsen elector actually said, “If 270 women got together on the Electoral College we could have had a woman president.”

Looking to Downsize? You Can Buy a 5-Room DIY Cabin on Amazon for Less Than $33,000

Five rooms of one's own.
Five rooms of one's own.
Allwood/Amazon

If you’ve already mastered DIY houses for birds and dogs, maybe it’s time you built one for yourself.

As Simplemost reports, there are a number of house kits that you can order on Amazon, and the Allwood Avalon Cabin Kit is one of the quaintest—and, at $32,990, most affordable—options. The 540-square-foot structure has enough space for a kitchen, a bathroom, a bedroom, and a sitting room—and there’s an additional 218-square-foot loft with the potential to be the coziest reading nook of all time.

You can opt for three larger rooms if you're willing to skip the kitchen and bathroom.Allwood/Amazon

The construction process might not be a great idea for someone who’s never picked up a hammer, but you don’t need an architectural degree to tackle it. Step-by-step instructions and all materials are included, so it’s a little like a high-level IKEA project. According to the Amazon listing, it takes two adults about a week to complete. Since the Nordic wood walls are reinforced with steel rods, the house can withstand winds up to 120 mph, and you can pay an extra $1000 to upgrade from double-glass windows and doors to triple-glass for added fortification.

Sadly, the cool ceiling lamp is not included.Allwood/Amazon

Though everything you need for the shell of the house comes in the kit, you will need to purchase whatever goes inside it: toilet, shower, sink, stove, insulation, and all other furnishings. You can also customize the blueprint to fit your own plans for the space; maybe, for example, you’re going to use the house as a small event venue, and you’d rather have two or three large, airy rooms and no kitchen or bedroom.

Intrigued? Find out more here.

[h/t Simplemost]

This article contains affiliate links to products selected by our editors. Mental Floss may receive a commission for purchases made through these links.

Who Were the Actual Brooks Brothers?

Phillip Pessar, Flickr // CC BY 2.0
Phillip Pessar, Flickr // CC BY 2.0

Brooks Brothers has been a mainstay of American formal wear for more than 200 years. The company’s suits have been worn by 40 U.S. presidents. They have supplied uniforms to the American armed forces and suits to regular people for their most important life events: going to the prom, attending their first job interview, getting married.

But in July 2020, the firm filed for bankruptcy, likely a victim of the working-from-home trend and the move towards more casual clothing. The Brooks Brothers’s name has been woven into the fabric of American fashion, yet a certain mystery surrounds the people behind the business. Who were the original Brooks Brothers, anyway?

The firm that would go on to be known as Brooks Brothers was established on April 7, 1818, by 45-year-old Henry Sands Brooks and his younger brother, David, as H & D. H. Brooks and Co. Before setting up the store, Henry Sands Brooks had been a provisioner for traders and seafarers, and likely did brisk business in New York City’s seaport. Their shop was situated on the corner of Catherine and Cherry streets in Lower Manhattan, a major shopping district that supported a number of clothing stores. It was said Brooks was something of a dandy with an eye for fashion.

Brooks Brothers ran a full-page ad celebrating its centenary in 1918.New York Evening Post // Public Domain

Henry Sands Brooks died in 1833, and the store passed to his eldest son, Henry Jr. When he died in 1850, Brooks Sr.’s four younger sons Daniel, John, Elisha, and Edward inherited the firm and renamed it Brooks Brothers. At this point, the store began to stand out from the crowd. The brothers adopted their familiar logo of a sheep suspended by a ribbon representing the Golden Fleece. This ancient symbol hearkened back to the Greek legend of Jason and the Argonauts, and was used by tailors and wool merchants across Europe as a sign of quality. By embracing this symbol, the brothers were announcing the caliber of their goods and aligning themselves with the prestige of European fashion.

While building a brand on traditional quality, the brothers also saw an opportunity to modernize. Brooks Brothers began specializing in ready-to-wear suits—an innovation that made “gentlemen’s clothing” accessible and affordable to ordinary Americans. An advertisement in New York’s Evening Post in June 1850 stated that Brooks Brothers ‘have on hand a large stock of ready-made clothing, suited to the tastes and wants of purchasers.’ Brooks Brothers also capitalized on the California Gold Rush by selling their ready-made suits to gold-seekers who didn’t have time to wait for a tailor to construct bespoke suits.

Business boomed in the years leading up to the Civil War, a time when the company benefited from slavery. Much of the cotton used by Brooks Brothers was picked by enslaved laborers in the South. The company also manufactured the types of uniforms worn by enslaved people forced to work as house servants.

Perhaps as a result of their experience making such clothing, Brooks Brothers was given a large contract by the Union government at the start of the Civil War to provide tens of thousands of uniforms for enlisted soldiers. A scandal blew up when the garments were delivered: it was obvious that the uniforms were of low quality, missing buttons or buttonholes, and made from cheap scraps of cloth glued instead of sewn together. When the outfits were exposed to wind and rain, they fell apart. In the rush to manufacture them for the war effort, Brooks Brothers had, in fact, substituted cheap and flimsy material instead of the usual grade of cloth—they were allowed to, according to the provisions written into their contract.

The New York state legislature launched an investigation, accusing the company of profiteering. When asked how much money the company had made by downgrading the cloth, Elisha Brooks prevaricated. “I think that I cannot ascertain the difference without spending more time than I can now devote to that purpose,” Brooks told lawmakers. Ultimately, Brooks Brothers agreed to replace 2350 of the substandard uniforms at a cost of $45,000.

An illustration of looters throwing trousers and other garments out of the Brooks Brothers store during New York City's draft riots appeared on the front page of Frank Leslie's Illustrated Newspaper on August 1, 1863.Frank Leslie's Illustrated Newspaper, 19th Century American Newspapers, Gale Primary Sources // Public Domain

The company’s association with outfitting the Union Army got them into trouble again in July 1863. The casualties among members of New York regiments were increasing as the war showed no signs of resolution. In New York City, working class people protested against the draft, and the protests quickly turned into a riot of racist violence and looting. Brooks Brothers’s Cherry Street store was one of the establishments it targeted. Harper’s Weekly reported that “a large number of marauders paid a visit to the extensive clothing-store of Messrs. Brooks Brothers … there they helped themselves to such articles as they wanted, after which they might be seen dispersing in all directions, laden with their ill-gotten booty.”

Brooks Brothers’s reputation didn’t suffer for long, however. At his second presidential inauguration in March 1865, Abraham Lincoln wore a greatcoat made by the company. It featured an eagle embroidered into its lining with the motto “One Country, One Destiny.” Lincoln was wearing the same coat when, just two weeks later, he was assassinated at Ford’s Theatre in Washington, D.C. After his death, Mary Todd Lincoln gave the coat to Alphonse Donn, a doorman at the White House, who kept it for the rest of his life. Donn’s family eventually sold the coat to the United States Capitol Historical Society, and it is now in the Ford’s Theatre museum's collection.

Brooks Brothers continued to grow and expand. The company introduced enduring fashions such as the button-down polo shirt in 1896, the sack suit in 1901, and their own version of a British regimental tie, the striped rep tie, in 1902.

For more than 200 years, the company has outfitted presidents, Wall Street traders, and businesspeople, becoming an iconic American brand with worldwide appeal. But today, their future may be less certain.