HOW THEY SEE IT If the electoral voting for president results in a tie, then what?

By PAUL SRACIC and NATHAN P. RITCHEY
WASHINGTON POST
What if Americans wake up Nov. 3 and discover that nobody had won the presidential election? We're not suggesting a repeat of the 2000 Florida recount -- though that could happen somewhere. We're talking about the electoral college outcome. As students of the process are beginning to observe, President Bush and Sen. John Kerry could end up in an electoral tie. There are, after all, an even number (538) of electoral votes available, and 2000 reminded us how close it can get: After the recounts were complete, the candidates were separated by a mere four electoral votes.
More than two months before the election, it is too early to use polling data to attempt to predict with any accuracy whether the election will be as close as most people seem to think. The very situation that makes an electoral tie a real possibility -- an almost equally divided electorate -- also makes such a result difficult to predict. And the small shifts among voters that will ultimately determine the results stubbornly resist capture. Trying to avoid simple guesswork, we wondered if it would be possible to calculate the probability that the electoral vote might end in a tie. Given the remarkable events that would ensue following such a tie, the temptation to do the math was irresistible. So here goes.
Based on the 2000 election results, Bush could be considered the favorite in about 22 states that have a combined total of 190 electoral votes. Kerry could be given the edge in 11 states, with 168 electoral votes. This scenario leaves 17 "swing" states, accounting for 180 electoral votes, in play this time around: Arizona, Arkansas, Florida, Iowa, Maine, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Mexico, Ohio, Oregon, Pennsylvania, West Virginia, Washington and Wisconsin.
The magic electoral number is 269; therefore, any combination of votes among those 17 states that yields a total of 101 more votes for Kerry (or, conversely, 79 more votes for Bush) will do the trick. Since there are only two potential outcomes in each of these 17 states (Kerry or Bush -- sorry, Mr. Nader), there are 131,072 (2 to the 17th power) possible formulations of the vote, ranging from all the states preferring Kerry to all of them supporting Bush.
Pick a scenario
Using a computer program, we calculated that there are exactly 1,969 scenarios under which the swing-state votes actually yield a tie. This may sound large, but it amounts to only about a 1.5 percent chance. If that seems too unlikely to worry about, think about this: The probability of the electoral count's turning out the way it did in 2000 (271 to 267) was only 1.4 percent.
We are dealing with probabilities, not real voters going to real polls. But if we use 2000 as a baseline, we find that a switch in as few as two swing states could result in both candidates being frozen at the magic number of 269. For example, if Nevada and New Hampshire (Bush states in 2000) switched allegiances in 2004, a tie would result.
What then? According to the Constitution, if no candidate receives a majority of electoral votes, the House of Representatives is to immediately choose a president from among the top three candidates. The vote is done by delegation; so, for example, Ohio's 20 House members would cast a single vote for president. Since Republicans have a majority in the Ohio delegation, it's probably safe to assume the state would vote to re-elect Bush.
In the current House delegations, Republicans control 30 states and Democrats 16, with four states evenly divided. But the current House would not conduct the vote. According to federal law, the electoral votes are actually counted (before a joint session of Congress) on Jan. 6. The Constitution has the new Congress taking office three days earlier, on Jan. 3.
Nevertheless, given that there are few competitive House races nationwide, it's unlikely the Republicans will lose control of the majority of the state delegations Nov. 2. Therefore, in the event of an electoral college tie, it's all but certain Bush would be selected to serve for another four years.
The proceedings in the Senate might be even more interesting. The Constitution, in its complicated wisdom, gave the Senate the role of selecting the vice president. Unlike the House, the Senate votes not by state delegation but by individual senator. Currently, it has 51 Republicans, 48 Democrats, and one independent (who caucuses with the Democrats). Obviously, the loss of one seat by the Republicans would result in a deadlocked Senate, something that occurred for a time in 2001 until Vermont Sen. Jim Jeffords left the Republican Party and declared himself an independent.
If a 50-50 Senate were to cast a party-line vote for vice president, who would break the tie? Well, the Constitution calls for the sitting vice president, as president of the Senate, to break ties. There might be a debate over whether this tie-breaking role ought to be exercised during a nonlegislative vote, but an argument could be made that Vice President Dick Cheney would be constitutionally empowered to place himself back into the No. 2 slot.
This is largely uncharted territory. It's been 180 years since Congress was faced with the task of acting in the wake of an election that did not produce a majority vote. Back in 1824, the House chose John Quincy Adams over Andrew Jackson, the candidate who had won the popular vote (although at the time, every state did not hold a popular vote for president).
Perhaps the correct precedent is even older. In 1796, John Adams, a member of the Federalist Party, was elected president. His vice president was Thomas Jefferson, leader of the Federalist's opponents, the Republicans. (This occurred, in part, because before the 12th Amendment, the candidate with the second highest number of electoral votes became vice president.)
Electoral tie
Jefferson would defeat Adams four years later, in an election that was itself fraught with controversy and which resulted in our first electoral tie. The tie -- between Jefferson and Aaron Burr -- went to the House, which voted 36 times before declaring Jefferson the winner.
Far-fetched as this may sound, we could end up with Bush being re-elected president and Democrat John Edwards serving as his vice president. If the Democrats gain two Senate seats in November, they would hold a majority.
XSracic is associate professor of political science at Youngstown State University and co-author of the Encyclopedia of American Parties, Campaigns, and Elections (Greenwood). Ritchey is professor and chair of the department of mathematics and statistics at YSU.