In the US, we elect our president and vice chairman utilizing the Electoral Faculty reasonably than the nationwide in style vote. To win, a celebration’s ticket should win essentially the most votes in sufficient states to achieve an outright majority of electoral votes — a minimum of 270 votes out of a complete of 538 (sound acquainted?).
However lurking in that general determine is the potential for no candidate to win a majority, within the case of a 269-to-269 tie. Whereas seemingly not in play within the 2024 election, it’s additionally potential that third events may win adequate electoral votes to forestall anybody from hitting 270. No matter the way it occurs, ought to no contender declare a majority, the Structure calls for Congress to hold out the number of our nationwide executives through a “contingent election.” On this state of affairs, the U.S. Home of Representatives would select the president, though primarily based not on the vote of the entire chamber however every state’s preferences — that means a candidate wants majority help from 26 state delegations out of fifty to win — and the 100-seat U.S. Senate would choose the vice chairman primarily based on the vote of particular person senators, with 51 votes wanted to win.
Might we run into this example within the 2024 presidential race? It’s potential, although fairly unlikely: In line with 538’s presidential forecast, there’s solely a couple of 1-in-300 likelihood that neither Vice President Kamala Harris or former President Donald Trump attain 270 electoral votes, and the one believable situations right here contain a 269-269 tie by which key swing states shift in ways in which seem much less seemingly primarily based on the present state of the race. With that in thoughts, let’s check out how we may find yourself with contingent elections for president and vice chairman, and why such a improvement would closely favor Republicans.
How Harris and Trump may each find yourself shy of 270
Of the small variety of situations in 538’s presidential forecast by which Harris and Trump tie, 4 situations are by far essentially the most believable, making up about 4 in 5 of these uncommon circumstances. In every, Harris would seize states and congressional districts price 225 electoral votes, whereas Trump would seize 219. That leaves the 94 electoral votes within the seven principal battleground states — Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin — in addition to Nebraska’s 2nd District in play for a potential tie, with the outcomes in these contests various throughout all 4 circumstances, as proven within the desk beneath.
Three of those 4 situations contain a minimum of two of the three northern swing states shifting into the GOP column whereas the southern and western ones largely find yourself in Democratic palms. That’s considerably at odds with our present forecast, which provides Trump a barely higher likelihood of flipping states within the Solar Belt than within the Frost Belt.
Of those, State of affairs 1 is the most typical — solely with a couple of 1-in-1,000 shot of taking place, nevertheless — and includes Trump holding onto North Carolina and flipping Pennsylvania and Michigan, whereas Harris retains Wisconsin, Arizona, Georgia and Nevada from President Biden’s 2020 exhibiting. Subsequent-most widespread is State of affairs 2 (a couple of 1-in-1,200 shot), which incorporates largely the identical outcomes, besides with Harris and Trump buying and selling Georgia and North Carolina’s an identical electoral votes. State of affairs 3, has a couple of 1-in-1,600 shot of taking place — In it, Trump reclaims the Solar Belt states and Nebraska’s 2nd District whereas Harris holds onto the three northern battlegrounds. State of affairs 4 is the least seemingly of this quartet (a couple of 1-in-2,000 likelihood), but it surely includes Trump carrying all of the northern battlegrounds and Nevada whereas Harris wins the three southern swing states.
Past these situations, a handful of much more distant potentialities exist, however they’ve a couple of 1-in-10,000 (or worse) likelihood of occurring. Of these, the one ones that occur a minimum of twice in our forecast’s roughly 34,000 simulations are 4 units of state-by-state outcomes by which Democratic-leaning New Hampshire or Virginia go Republican, whereas the outcomes within the seven key swing states fluctuate (though Michigan stays within the Democratic column in all 4). Out of the 12 different simulations that produce a tie, two contain Maine’s red-leaning 2nd District going Democratic.
Now, 538’s forecast assumes that electoral votes will go to the candidate who has gained them primarily based on the election outcomes — however that’s not a 100-percent given. In 2020, as an example, Republicans in a handful of states that voted for Biden tried to submit pretend Republican electors to Congress in help of Trump’s unfounded claims that he’d truly gained the election. And about two-thirds of Home Republicans voted towards certifying the outcomes in a single or each of Arizona and Pennsylvania. Whereas these makes an attempt to disrupt the 2020 election finally failed, they may undoubtedly come into play in 2024, too.
Moreover, the electors of the Electoral Faculty have some room for maneuver to forged votes for whomever they need, that means a “faithless elector” may refuse to forged their vote for the ticket they had been anticipated to help. For example, in 2016, 5 Democratic electors and two Republican electors didn’t forged their votes for his or her get together tickets however as a substitute voted for different candidates. If an election consequence had been to hold on each elector like in a 269-269 tie or one other very shut state of affairs, it’s unlikely {that a} faithless elector would forged what would quantity to a protest vote — however it might probably’t completely be dominated out.
How the Home would elect a president
If Congress finds the absence of a majority when it gathers on Jan. 6, 2025, to certify the Electoral Faculty outcomes, the twelfth Modification requires the Home to “instantly” select the president from not more than the three candidates who gained essentially the most electoral votes. In a 269-269 tie, that may imply simply the 2 major-party nominees (although a faithless elector state of affairs may technically introduce a 3rd candidate). Nonetheless, the selection shouldn’t be primarily based on a easy vote by the Home’s 435 members as a complete, however as a substitute is determined by way of a singular system whereby every state casts one vote in keeping with the preferences of every member of that state’s Home delegation — with states which have tied delegations probably unable to forged a vote except a member breaks with their get together. To win, a candidate should win a majority of state delegations (26).
Beneath these guidelines, Republicans would seemingly maintain an edge on this contingent election for president. 538’s Home forecast reveals a good race for general management of the Home (which, after all, is predicated on which get together controls extra particular person seats), however Republicans are way more seemingly than the Democrats to have an edge within the Home delegations from a minimum of 26 states within the subsequent Congress. Presently, Republicans maintain a majority of the Home seats in 26 states in contrast with the Democrats’ 22, whereas two others (Minnesota and North Carolina) are tied. But if we take 538’s forecast and price every state primarily based on the race score of its best seat that may change get together management, the GOP seems to be favored to manage as many as 28 state delegations to Democrats’ 18 come January, with the 4 different states rated as toss-ups or prone to have tied delegations.
Based mostly on this metric, Republicans are presently positioned to flip a minimum of one state delegation of their favor, and presumably extra. Because of a brand new Republican-drawn congressional map in North Carolina, the GOP is all however sure to shift that state from a 7-7 tied delegation to at least one with a minimum of a 10-4 Republican edge. The GOP can also have a shot at capturing Michigan, the place Democrats’ 7-6 lead seems to be tenuous resulting from two swingy Democratic-held seats that Republicans hope to flip. And, the GOP must flip just one extremely aggressive seat in Alaska, Pennsylvania or Virginia to manage the Home delegations in these states, whereas doing the identical in Colorado and Maine would produce tied delegations in states presently held by Democrats.
In the meantime, Democrats haven’t any actual path to 26 state delegations in a political setting the place the presidential election produces a 269-269 tie within the Electoral Faculty. At greatest, they may hope to carry onto their present states — save North Carolina — and flip two aggressive Republican-held seats in Arizona to stay at 22 states. But when Democrats did higher than that — say by flipping GOP-leaning seats in states similar to Iowa, Montana and/or Wisconsin to probably tie these delegations — that may in all probability sign that Democrats are doing nicely sufficient general that Harris is profitable on the prime of the ticket, making the contingent election arithmetic purely tutorial.
Now we have just one precedent for a contingent election for president: the 1824 presidential race.* At the moment, the Democratic-Republicans (recognized then because the Republicans however unrelated to in the present day’s get together) held a dominant political place amid the decline of the rival Federalist Get together. Because of this, 4 separate Democratic-Republicans contested the presidential race. To win, a candidate wanted 131 electoral votes out of 261, however each contender fell in need of that mark: Common Andrew Jackson gained 99 electoral votes, Secretary of State John Quincy Adams captured 84 electoral votes, Secretary of the Treasury William Crawford earned 41 electoral votes and Home Speaker Henry Clay got here in fourth with 37 electoral votes.
When the Home gathered in February 1825 to decide on a president, it may solely take into account Jackson, Adams and Crawford — the top-three recipients of electoral votes. Whereas all had been Democratic-Republicans, the get together had inside divisions that may finally cut up into a brand new get together system by the 1828 election, and the votes within the Home largely adopted these cleavages. Clay, speaker of the chamber deciding the election, seen Adams as most according to his political beliefs and publicly backed him. Accordingly, Home members from the states that had supported Clay largely shifted to Adams’ camp, which enabled Adams to win the 13 states that he wanted to achieve the presidency. (Jackson’s supporters quickly argued that Adams and Clay had struck a “corrupt discount,” whereby Clay turned Adams’s secretary of state in alternate for Clay’s help. In 1828, Jackson went on to defeat Adams in a head-to-head rematch.)
Past its age and strange political context, there are different causes this 200-year-old case may not function a lot of a precedent for a contemporary contingent election, although. For one, resulting from the twentieth Modification, the newly-elected Home would elect the president reasonably than the outgoing Congress that did the job in 1825, again at a time when the brand new Congress started in early March as a substitute of on Jan. 3.
The selection that may confront the Home in January 2025 would seemingly be extra simple than the choice the chamber confronted two centuries in the past, too. Whereas the Home needed to type out an election involving three choices ostensibly from the identical get together in 1825, it could seemingly be weighing two candidates from clearly opposing events this time round — and the two-party division within the Home in the present day is instantly obvious. Because of this, it’s very tough to think about any Democrat or Republican deciding to vote for the opposite get together’s candidate in a contingent election, a transfer that would successfully finish the defector’s political profession at a time of intense partisanship — particularly if the vote is public. (In 1825, the Home selected to conduct its contingent election in closed proceedings utilizing a secret poll, however the preferences of particular person members quickly turned public information.)
How the Senate would elect a vice chairman
Harris’s rise to turn into her get together’s customary bearer is barely the newest demonstration of how necessary the vice presidency is — and it’s the Senate that may resolve who fills this key place if no vice presidential candidate earned a majority within the Electoral Faculty. In contrast to the Home, a Senate contingent election vote could be primarily based on a vote of the chamber as a complete, by which a candidate wants 51 of 100 votes to win. Moreover, the Senate can solely take into account the highest two recipients of electoral votes, so even when a faithless elector casts a vote for one more vice presidential candidate, the Senate would discover itself choosing between the major-party operating mates: Ohio Sen. J.D. Vance and Minnesota Gov. Tim Walz.
The Senate math favors Republicans to win a contingent election for vice chairman, too, resulting from their seeming edge within the race to manage the higher chamber. Presently, Democrats maintain a 51-to-49 majority, together with the 4 independents who caucus with them. However Republicans are basically assured to select up a Democratic-held seat in darkish pink West Virginia to get to 50-50. Subsequent, Democratic Sen. Jon Tester is a minimum of a slight underdog to win reelection in Republican-leaning Montana, whereas Democratic Sen. Sherrod Brown is in a toss-up race to maintain maintain of his Ohio seat. Moreover, Democrats are combating to defend 5 seats in key presidential swing states (Arizona, Michigan, Nevada, Pennsylvania and Wisconsin), which may additionally bear some fruit for the GOP. On prime of this, Democrats have solely a small likelihood of capturing GOP-held seats in states like Texas and Florida.
Now, it’s potential that the Senate math wouldn’t be as simple because the Home as a result of the GOP caucus will embrace some senators who’re extra overtly vital of Trump. Two Republican senators who voted to question Trump after the occasions of Jan. 6 — Susan Collins of Maine and Lisa Murkowski of Alaska — will nonetheless be within the Senate this January. Considered one of them (notably Murkowski, reelected in 2022 by Alaska’s ranked-choice voting system) may vote towards Vance in a contingent election. Nonetheless, it’s extra seemingly than not that the GOP would have the higher hand.
That being stated, any sudden delays within the Home’s course of to elect a president may additionally cloud the Senate image. Based mostly on the twelfth Modification, if the Home fails to elect a president by Inauguration Day (Jan. 20), the Senate’s selection for vice chairman would function appearing president till the Home elects a president. And if the Senate additionally fails to decide on a vice chairman, the Presidential Succession Act requires the Speaker of the Home to be subsequent in line to function appearing president. (Assuming that particular person meets the presidential eligibility necessities and that the Home is ready to choose one — the latter hasn’t occurred simply in latest instances.)
Simply as soon as has the Senate needed to elect a vice chairman, and no, it truly wasn’t in 1824-25 when the Home needed to elect a president. In that election, Sen. John Calhoun gained a majority of votes for the place within the Electoral Faculty from a mixture of electors who primarily backed Jackson or Adams for president. Quite, the one time the Senate elected a vice chairman was in February 1837, following the 1836 election when no vice presidential candidate gained a majority of electoral votes due to intraparty dislike for Richard Mentor Johnson, the operating mate of the victorious presidential candidate, Democrat Martin Van Buren.
Within the 1836 election, the Van Buren-Johnson ticket carried states price 170 electoral votes, surpassing the required 148 of 294 to win. Nonetheless, whereas Virginia’s 23 Democratic electors voted for Van Buren, they voted for a special vice presidential candidate, leaving Johnson simply shy of a majority with 147 electoral votes. A Kentucky consultant and former senator, Johnson had alienated some in his get together, particularly within the South, resulting from his common-law marriage to an enslaved Black girl. Nonetheless, a largely party-line vote within the Senate simply elected Johnson as vice chairman, 33 to 16. Johnson’s political difficulties continued, although, because the Democrats refused to renominate him at their 1840 conference, though he served because the get together’s de facto nominee in most states as Van Buren misplaced reelection.
***
It’s fairly unlikely, however not unattainable, that we may discover ourselves in a scenario the place Congress has to resolve the subsequent president and vice chairman. However because the 1824-25 instance reveals, a contingent election to resolve the subsequent occupant of the White Home may carry with it ample controversy and dissatisfaction that would keep on for years to return.
Footnote
*The Electoral Faculty consequence within the 1800 election additionally required the Home to decide on the president, however that came about earlier than the passage of the twelfth Modification (that election precipitated its implementation), so the 1824 election is the one contingent election for president to happen beneath the principles that may govern one in the present day.
