What if the 2020 election isn’t decided by voters? Every two years, America’s pundits play a hyperventilating game of “what if” along these lines. With Donald Trump running for re-election, that game is on steroids and, depending on the what side of the partisan divide you sit, means life or death. But this year, perhaps for the first time, there is the real possibility that America’s Electoral College ends in a 269-269 tie.
Could anything be more #2020 than an election that doesn’t end up deciding the winner?
What happens then?
If neither President Trump nor former Vice President Biden get a majority of the electoral votes, the power for picking the next President will be given to the United States House of Representatives which will meet on January 6th, 2021. The newly elected Congress will be sworn in on January 3rd, 2021 meaning the new Congress would take over the responsibility for choosing the President. The power for picking the next Vice President will go to the United States Senate.
Which means you could have a Democrat President and Republican Vice President. It’s Bill Murray saying in Ghost Busters, ““Human sacrifice! Dogs and cats living together! Mass hysteria!”.
So How Does It Actually Work?
Each state within the House gets one vote. Meaning either Pres. Trump or Vice President Biden will need twenty-six (26) states to vote for them to become President. The House does NOT decide who will be President based on a majority of Representatives voting (much to Republican’s delight in 2020), it is chosen based on state majority (much to 2020 Democrat chagrin). So, for example, if a state has 5 Republican Members and 3 Democrat Members, the Republicans don’t get 5 votes and Democrats get 3, instead that state will more than likely vote their 1 vote for the Republican candidate since Republicans make up the Majority of the House in that particular state.
So what is the current breakdown? In 2020 there are 26 states with Republican majorities representation in the House, 23 states with a Democrat majority, and 1 tie. (https://www.270towin.com/news/2018/11/15/2018-midterms-partisan-control-of-the-us-house-by-state_714.html)
For Vice President, the Vice-Presidential candidate must have a majority of Senators (51) to win. Unlike the House, the Senate does NOT need a majority of states. Thus, in a state like Arizona where you have a Republican and Democrat Senator, the Senators do not need to come to an agreement on their choice for VP as a state since they get to vote independently of one another. Seems simple, but what if the House fails to produce 26 states? Remember this is #2020.
Well according to the 20th Amendment, if the House fails to elect a president (there is a tie within the House 25/25) by January 20th, 2021 the Vice President elected by the Senate will become the interim President until the President is decided by the House. If the Senate is deadlocked and has not decided on a Vice President AND the House has not decided on a President, the Speaker of the House, currently Nancy Pelosi, will serve as president until either the President or Vice President is selected.
But alas, there is another possible plot twist. Before the election is decided by members of Congress, the members of the Electoral College may (although unlikely) decide the tie. Electors meet on December 14, 2020 to cast their votes.
Only 33 states and the District of Columbia have laws requiring their Electors to vote for the winner of the popular vote in that state. Thus a single Elector from a state without one of those laws could change their vote and determine who wins the election. Talk about someone possibly having their 15 minutes of fame.
There is currently no Constitutional provision or Federal law that requires electors to vote for whoever wins the popular vote in their state. However, the Supreme Court upheld in July of this year that States can pass laws requiring their Electors to vote for whoever wins the popular vote. Would a 269-269 tie motivate some governors and legislatures to call a special session before December 14 to require Electors to vote for whomever won their state’s popular vote? Hey, it’s #2020 – anything is possible. So those are the rules IF a tie happens. A big IF, but a possibility none the less.