ELECTORAL COLLEGE DEADLOCK

1. ELECTORAL COLLEGE DEADLOCK And the Contingent Procedure

2. Electoral College Deadlock • In every Presidential election since 1824, once it was known who had won the electoral votes of each state, one candidate has always had the required majority of electoral votes. • If and when it happens that no candidate wins the required majority [at present 270] of electoral votes, there will be a (prospective) Electoral College deadlock that must be resolved through the contingent procedure. • Electoral College deadlock can result from either of two circumstances: • an electoral vote tie (269 to 269) between two (major party) candidates, or • a multi-candidate election in which a third (etc.) candidate wins some electoral votes, with the result that even the leading candidate fails to win 270 electoral votes.

3. Electoral College Deadlock (cont.) • In the event of Electoral College deadlock, the “contingent procedure” comes into effect, i.e., • the Presidential election is thrown into the House of Representatives, • voting by state delegations (one state, one vote) • from among the top three candidates; and • the Vice Presidential election is thrown into the Senate, • voting by individuals • from among the top two candidates. • In each House, balloting continues until a candidate receives the required majority, which at the present time is • 26 states in the House and • 51 senators.

4. The Number of Electoral Votes • It might seem simple enough to preclude EV ties: • just make the total number of electoral votes an odd number. • Given that EV = HR + S and the number of Senators is always even, • just make the size of the House odd (which seems desirable itself). • Surprisingly, the size of the House was fixed at an even number during five of the ten decennial apportionments during the 19th century. • Of course, new states were admitted quite frequently, so the number of House seats also changed (perhaps from odd to even or vice versa) within decades. • The size of the House was “permanently” fixed at 435 when AZ and NM were admitted in 1912. • This resulted in 435 + (2 x 48) = 531 electoral votes until AK and HW were admitted to the union in time for the 1958 election. • AK and HW were allocated 1 “temporary” House seat each, so • there were 537 electoral votes in 1960. • In the 1960 apportionment, House size returned to 435. • The 23rd Amendment, giving 3 EV to DC was ratified prior to the 1964 election. • Since then the number of electoral votes has always been 538 (an even number).

5. A Sample of 32,000 Simulated Elections Based on Perturbations of 2004 Electoral Landscape

6. Estimated (Symmetric) Probability of EV Tie By Popular Vote in 0.05% Intervals (Based on 2004 Landscape)

7. 1972:Possible Electoral College Deadlock Without a Third Candidate

8. Two Plausible Electoral Vote Deadlocks (269-269) in 2008 • In each scenario, if Obama won one district EV in NB, or if McCain one district in ME, that one district would decide the election, • though if each won a district, we’re back to 269-269. Source: Real Clear Politics, 10/03/0

9. 2008:Possible Electoral College Deadlock Without a Third Candidate(Preliminary Vote Totals)

10. Final 2008 PVEV

11. Electoral Vote Tie • What would happen if the popular vote produced such a tie? • Despite the electoral vote tie, one or other candidate would be the “popular vote winner,” most likely by a small but fairly clear margin (e.g., 100,000+ votes). • This fact would attract a lot of attention and produce some expectation that the popular vote winner should become president. • One or more “faithless electors” might break the tie when electoral votes are cast on December 15. • Should there be such “faithless electors,” they would probably be electors pledged to vote for the “popular vote loser” who instead would vote for the “popular vote winner.” • But contemporary party polarization probably makes such defections unlikely. • Moreover, the actions of electors would likely be influenced by expectations concerning the prospective outcome under the contingent procedure.

12. Electoral Vote Tie (cont.) • If the 2012 election had produced an EV tie that is not broken when electoral are cast, the contingent procedure would come into effect immediately after the counting of electoral votes on January 6, 2012. • In the 113th House, • Democrats control 17 state delegations, • Republicans control 30 state delegations, and • three delegations are evenly decided. • Democrats control the present Senate 53-45 with Democratic-leaning independents. • There is dispute about whether the Vice President has a tie-breaking vote in the event of a 50-50 vote for Vice President. • Constitution, Article II: The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. • 12th Amendment: the Senate shall choose the Vice-President; . . . and a majority of the whole number shall be necessary to a choice.

13. Electoral Vote Tie: 113th Congress

14. Multi-Candidate Presidential Elections • The second, and perhaps more likely, circumstance that would deadlock the Electoral College is a multi-candidate Presidential election in which • a third (etc.) candidate wins some electoral votes, • with the result that even the leading candidate fails to win 270 electoral votes. • Despite Duverger’s Law, there have been about a dozen Presidential elections with a significant third candidate in the U.S. history. • Many (but not all) produced “minority Presidents.” • Other “minority Presidents” have resulted from close elections in conjunction with very minor candidates (e.g., 1960). • Other than 1824, none of these multi-candidate elections have produced an Electoral College deadlock, but • several certainly threatened to do so.

15. Multi-Candidate Elections (cont.) • Apart from an EV tie, an EC deadlock requires a third candidate to actually win electoral votes, • i.e., to win a plurality of popular votes in one or more states. • This in turn is much more likely if the third candidate has a sectional base of support. • The closer the contest between the two leading candidates, the more likely it is that a third candidate with a given amount of support can deadlock the Electoral College. • For example, over the course of the 1968 campaign, polls showed both that • Wallace’s support was diminishing; but also • the Nixon-Humphrey race was tightening up, so • the likelihood of an Electoral College deadlock actually increased.

16. 1860

17. 1860 Electoral Map

18. 1892

19. 1892 Electoral Map

20. 1912

21. 1912 Electoral Map

22. 1924

23. 1924 Electoral Map

24. 1948

25. 1948 Electoral Map

26. 1960

27. 1960 Electoral Map

28. 1968

29. 1968 Electoral Map

30. 1980

31. 1992

32. 1996

33. Uniform National Swing and Electoral College Deadlock • While none of these elections produced an Electoral College deadlock triggering the House contingent procedure, several of them would have if the vote for the two major-party candidates had been (even) closer. • We can get some sense of the likelihood of such a deadlock by using (a variant of) the uniform national swing analysis previously used to measure the width of the election inversion interval. • This entails • holding the popular vote of the third candidate constant, • while examining the effect of a uniform national swing between the Democratic and Republican candidates.

34. Uniform National Swing and Electoral College Deadlock (cont.) • In this analysis, there are two critical threshold for the third candidate • If the third candidate receives more than 50% of the popular vote in a state, he wins that state’s electoral votes regardless of the vote division between the major-party candidates in that state. • If the third candidate, receives less than 1/3 of the popular vote in a state, he loses that state’s electoral votes regardless of the vote division between the major-party candidates in that state. • If the third candidate receives between 1/3 and 1/2 of the popular vote in states, he win the state’s electoral votes or not depending on how evenly the major party candidates split the remainder of the vote.

35. EC Deadlock Unlikely in 1912

36. EC Deadlock Near Miss in 1948

37. A Slightly Less Close Miss in 1960

38. Not So Close Miss in 1968

39. Third Candidate Scenarios • In broad terms, there are two distinctive types of third candidates who might deadlock the Electoral College. • The first possibility is a insurgent (or radical or extremist) candidate (probably to the right or left of both major candidates and probably with a sectional base) • who appeals to a section of the electorate with some special grievance, and • whose goal is not to be elected President but to attract attention and try to deadlock the Electoral College and thereby become a “kingmaker.” • Such a candidate would probably run far behind both major-party candidates in popular votes, but with geographically concentrated support would win some electoral votes. • Examples: • certainly Weaver (Populist, 1892) • probably LaFollette (Progressive, 1924) • certainly Thurmond (States’ Right, 1948) • certainly unpledged elector slates (1960) • certainly George Wallace (American Independent, 1968)

40. Third Candidate Scenarios (cont.) • The second possibility is a centrist candidate (probably running as an independent or on some kind of “national unity” ticket), • who appeals to a broad segment of the electorate unhappy with both major parties, but • without a particular geographical basis of support, and • who may have a realistic goal to be elected President. • Such a candidate might run more or less even with both major-party candidates in popular votes, and the distribution of electoral votes among the three candidates would be highly unpredictable. • Examples: • certainly T. Roosevelt (Progressive, 1912) • possibly LaFollette (Progressive, 1924), if he had run stronger • Anderson (Independent, 1980), if he had run much stronger • Perot (Independent, 1992), if he had run somewhat stronger • Perot (Reform, 1996), if he had run much stronger

41. Third Candidate Scenarios (cont.) • An insurgent candidate is likely to be a potential spoiler to the ideologically proximate major-party candidate, • perhaps making the contest between the two major-party candidates less close than it otherwise would be, and • thereby making it less likely that the insurgent can deadlock the electoral college. • On the other hand, a centrist candidate, drawing support away from both major-party candidates, is less likely to be a potential spoiler against one them, • perhaps thereby allowing the contest between the two major-party candidates to remain close, and • thereby making it more likely that he can deadlock the electoral college.

42. Electoral College Deadlock • Suppose on the day after the election, three candidates have won electoral vote and none has the required 270. • Even as the identity of the President-elect remains unknown, the partisan makeup of the new House will be known. • If one party controls 26 or more state delegations, the outcome of a House election may be fairly predictable. • However, there may be party members in the House willing (or even anxious) to vote against their party’s President candidate. • If neither party controls 26 state delegations, there is a strong prospect of House deadlock on early ballots. • [See below on the 1825 House Rules]

43. Electoral College Deadlock (cont.) • Two distinct periods of uncertainty, conflict, and bargaining will occur: • between the selection of electors [on Presidential election day] and the casting of electoral votes [in mid-December]; and • immediately following the counting of electoral votes before the joint session of Congress [on January 6]. • Each period corresponds to two distinct modes of breaking the deadlock: • bargaining over the casting of electoral votes. • bargaining in the House of Representatives, • plus possible House-Senate interactions.

44. Electoral College Deadlock (cont.) • However, the outcome of the first stage may depend on expectations concerning the prospective outcome of the second stage. • On one hand, the outcome of the second stage may be quite predictable. • On the other hand, the outcome of the second stage may remain highly uncertain. • Presumably neither type of third candidate (in contrast to both major-party candidates) would have any automatic base of support in the House. • However, a centrist candidate might win in the House (as a compromise candidate), • so the outcome may be especially uncertain, while • an insurgent candidate presumably could not win in the House, • so the outcome may be fairly certain (based on party-line voting).

45. Before the Casting of Electoral Votes • An insurgent candidate may try to strike a bargain with one of the two major candidates, promising that candidate electoral votes in return for concessions in policy and/or personnel. • Note that an insurgent candidate has such bargaining leverage before electoral votes are cast • but loses it entirely afterwards (assuming he has almost no support in the House( • Other things equal, the insurgent candidate would expect to make a deal with the more ideologically proximate major-party candidate. • But other things probably would not be equal, since partisan makeup of the new House would be known. • The outcome of a House election might be predictable, in which case • the major-party candidate expected to lose a House election would have more of an incentive to deal with the factional candidate.

46. George Wallace in 1968 • George Wallace is 1968 was a very clear example of a possibly successful insurgent candidate. • Wallace extracted from each of his elector candidates a pledge to cast an electoral vote for Wallace or whomever Wallace designated, so as to enhance Wallace’s bargaining power prior to the casting of electoral votes (in the event Wallace was able to deadlock the Electoral College). • Nixon was the ideologically more proximate major party candidate, presumably more willing to make concessions on civil rights. • In the House, Democrats controlled 26 state delegations, Republicans 19, and 5 were equally divided. • However, the 26 Democratic delegations included all Southern and Border state delegation except VA [which was equally split]. • Some Southern and Border State Democrats were sympathetic to Wallace, more had constituents sympathetic to Wallace, and many probably preferred Nixon to Humphrey for President. • So the outcome of a House election would have been quite uncertain (though it was clear Wallace could not have won in the House) • The “unpledged elector” gambit in 1960 was similarly motivated.

47. Before the Casting of Electoral Votes (cont.) • A centrist third candidate might seek to bargain with the major-party candidates, in the same manner as a factional candidate. • Such a candidate could more readily play the two other candidates off against each other, • since he would represent a compromise between them. • But, especially if he ran ahead of one or both major-party candidates, a centrist third candidate might try to bargain the other way, i.e., • offer them promises in return for their support. • However, the regular party candidates could not reliably offer electoral votes the way Wallace and other factional candidates might. • Democratic and Republican electors are unconditionally pledged to support their party nominees and are bound to do so by party rules (and, in some states, by law as well). • So an Electoral College deadlock involving a centrist third candidate probably would not be resolved prior to the casting of electoral votes.

48. After the Casting of Electoral Votes • If no deal is made prior to the casting of electoral votes, it will be evident that the House contingent procedure [unused since 1824] will come into play. • However, nothing official could happen until electoral votes are counted on January 6. • But there surely would be much preliminary wheeling and dealing, focused primarily on the [newly elected] House or Representatives that will select the President from the top three candidates [12th Amendment] . • An electoral college deadlock for President presumably implies also a deadlock for Vice President, and the [newly elected] Senate will select the Vice President from among the top two candidates [12th Amendment].

49. The House Contingent Procedure • If the counting of electoral votes confirms an electoral vote deadlock, the 12th Amendment requires the House “immediately” to begin balloting for President (from among the top three candidates). • The House cannot elect an appealing outside compromise candidate (e.g., a “Colin Powell” type) other than the top three. • Unless it choose to change them, the House will follow the rules it drew up in 1825 to resolve the electoral college deadlock resulting from the 1824 Presidential election.

50. The 1825 House Rules • A quorum consisting of at least one member from 2/3 of the state delegations is required. • Election requires support by a majority of all state delegations, i.e., 26 votes. • Though it has electoral votes, DC has no representation in the contingent procedure. • Prior to each House ballot, formal balloting takes place within each state delegation. • A Presidential candidate receives the vote of a state if and only if the candidate is supported by a majority of the state delegations. • If no candidate receives such support within the delegation, the state casts a “divided vote” and effectively abstains. • Balloting continues until a President is elected. • A motion for to adjourn temporarily must be supported by a majority of state delegations.