Any political analyst worth his or her salt is asked all the time, "Who’s going to win the presidency on Nov. 3, Trump or Biden?" In 2020, you wouldn’t be a smart alec if you answered "neither."
Why? Because the United States, in all its technological and entrepreneurial brilliance, not only has a presidential election system that allows for the person who gets the most votes to lose (hello electoral college, nice to see you!) but also makes a tie quite feasible.
In order to win the presidency, a candidate needs 270 electoral votes out of the 538 possible. Note that 538 is an even number. Trump and Biden each receiving 269 electoral votes is not only possible, but based on current state-by-state polling, not out of the question.
So how could we get there? First, take all the states that Trump won in 2016 and you get 306 electoral votes. Take all the states Clinton won and you get 232 electoral votes. Biden wins back Michigan and Pennsylvania. That gets Biden to 268 electoral votes and Trump pulls out a narrow 270-268 victory.
But wait! There are two states, Maine and Nebraska, that award an electoral college vote if a candidate wins a congressional district in their state. A new poll out by Siena University shows Biden leading by seven points in Nebraska’s 2nd congressional district. If Biden wins that lone electoral vote — voila! — 269-269 electoral college tie.
What happens then? The newly elected U.S. House of Representatives would choose the president. The last time this happened was in 1824. Now, you might think, well, the House is likely to be kept by the Democrats, so it would choose Biden. Not so fast! The House chooses the president not by a simple majority vote, but by a vote of state delegations (meaning one state, one vote).
Currently, Republicans have a 26-23 state delegation lead in the House (Pennsylvania is split). So, if Republicans lose the House but keep their delegation majority, they can choose Trump in the case of a tied election.
But, what happens if after the November election, the House delegations are now tied, 25-25? Good question! If no candidate can achieve a majority, then the person selected as vice president would serve as president. But wait, how do we get a vice president?
Well, the newly elected Senate chooses the vice president in the case of a 269-269 electoral college tie. Right now, Republicans hold the Senate majority, 53-47, so Democrats need to swing four states to get to a majority of 51. Democrats are ahead in Senate races in Arizona, North Carolina, Maine and Colorado, so it’s possible.
But, what if they only swing three, making it a 50-50 tie in the Senate? Aha, you say, here’s where Vice President Mike Pence comes in, and using his tie-breaking powers given to the vice president, votes for himself to be vice president and then he becomes president.
Not so fast. The 12th Amendment to the Constitution says that a "majority of the whole number" of senators (currently 51 of 100) is necessary for election. That sounds like it means no tie-breaker for Pence. So, it’s a 50-50 tie in the Senate, so no vice president can be chosen; and it’s a 25-25 tie in the House, so no president can be chosen.
Stymied. Who then becomes president? Speaker of the House. All rise for President Nancy Pelosi.
Bob Beatty is a political scientist in Topeka. He can be reached at email@example.com.