What if the Electoral College is tied at 269 in 2004? Part 1 - Procedure by James R Whitson October 25, 2004 The following is an updated version of article originally written for the 2000 election. Part one discusses the procedure that would be followed in the case of an Electoral College tie. Part two analyzes the possible outcomes of an Electoral College tie. With almost every poll showing Bush and Kerry tied or in a statistical dead heat, the likelihood that the Electoral College could be tied as well is becoming a distinct possibility. The process, spelled out in the Constitution, triggered by a tie is the same as when no candidate receives a majority of electoral votes. Only twice in American history has this situation come up. In the election of 1800, Thomas Jefferson and Aaron Burr both tied with 73 electoral votes, while 130 votes were split among three other candidates. In 1824, Andrew Jackson received 99 votes, John Quincy Adams got 84 votes, and two other candidates took the remaining 78 votes. In both these cases, no candidate received a majority of the total electoral votes cast. With today's two-party system, the most likely way two candidates could fail to receive a majority of votes is to tie 269-269. While some in the media would call this a "constitutional crisis", it is not. The 12th Amendment spells out what should be done when this situation arises. THE PROCEDURE On December 13, 2004, the electors will meet in their state capitols and cast their actual votes. These will be opened and read by the President of the Senate, Dick Cheney, in a joint session of the newly elected Congress at 1pm on January 6, 2005. Once it has been established there is a tie, it becomes the responsibility of the 435 members of the House of Representatives to choose the next President of the United States. However, a special voting procedure is employed in this situation. Each state receives only one vote, and the representatives from each state have to decide which candidate gets theirs. (For example, all 32 of Texas' representatives will vote individually. Then their votes are tallied. Which ever candidate receives a plurality of these 32 votes wins Texas' one vote; if no candidate receives a plurality of these 32 votes, Texas' one vote is not cast.) Members from at least 34 states must be present for this vote to count. Which ever candidate receives the votes of at least 26 states is declared the President. If no one reaches 26 votes, further balloting is done. (It took the Representatives 36 ballots over 6 days to reach a winner in the 1800 election!) Since electors vote for the president and vice president separately, a tie on the top of the ticket would almost certainly mean a tie on the bottom of the ticket. If Cheney and Edwards were both to receive 269 vice presidential electoral votes each, it would be up to the 100 members of the Senate to choose the winner. The voting procedure here is much more straightforward. As long as at least 67 Senators are present, they each cast one vote. Which ever VP candidate receives at least 51 votes is declared the winner. If the vote is tied at 50-50, there might be a bit of legal haggling over what would happen. Most people automatically assume Cheney as the sitting VP would cast the deciding vote. Some people believe that only the Senators themselves would be allowed to vote and that a 50-50 tie would just result in more balloting until someone won. Also see: What if the Electoral College is tied at 269 in 2004? Part 2 - Analysis What if the Electoral College is tied at 269 in 2004? Part 1 - Procedure © James R Whitson, President Elect

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