March 9, 2004

Electoral College Tie Can Be Avoided

By Robert Bennett, Nathaniel L. Nathanson Professor of Law at Northwestern University School of Law

The President of the United States is chosen by a vote of just 538 people, the so-called “electoral college.” That is an even number, and we came perilously close to a tie in the 2000 election, where 267 electors were pledged to Gore and 271 to Bush. As just one example, had Pennsylvania gone for Gore and Florida for Bush in the state popular votes by which those electors are chosen, there would have been a tie vote for President in 2000.

Is it possible to forestall the possibility of a tie in the future? The answer is “yes,” and we should do so before one bites us. For in case of an electoral college tie, the choice of our President is relegated to the House of Representatives, where the most ferocious bargaining might well overwhelm the process. The presidency is, after all, a very big prize, and the procedure that the House follows in making the choice creates fertile ground for unseemly bargains.

My suggested remedy, or at least partial remedy, is to increase the size of the House of Representatives – now 435 – by one, thereby giving the electoral college an odd number of members, and greatly decreasing the possibility of a tie.

In the House procedure each state gets one vote, and a majority – 26 states -- is required to elect a President. The tie possibility could bedevil that process as well. The states could break 25 to 25, but a more serious possibility is that states with even numbers of representatives might themselves be unable to vote because of a tie in the delegation. At the present time there are 17 states with an even number of House members.

Some members might break party ranks to vote with the popular vote winner in their states or districts. That could break ties or create them. More likely perhaps is that partisan affiliation would dominate the House voting. At the present time there are four states with a partisan standoff in their House delegations. If those states were required to abstain, at least initially the House might be unable to choose.

Paralysis would be unlikely if the House vote were held tomorrow. South Dakota’s congressman, a Republican, recently resigned, but the Republicans still control 29 delegations. There is, however, no reason to think that one party will routinely control a majority of the state delegations. The Republican margin in twelve of those 29 delegations is one vote. And more generally even decisive control of the House by one party is entirely consistent with neither party being able to command a majority of the fifty delegations.

Sooner or later the standoff would likely be ended, but the costs could be enormous. Who knows what a lone congressman, or a few united by some favored cause, might extract from a presidential candidate in return for a decisive defection from party ranks?

Recourse to the House for selection of the President would not be entirely eliminated by an increase in the House’s size. House selection is required whenever no candidate commands a majority of the electoral college. Even absent a tie, both candidates of our two major parties might be denied that majority if third party candidates took some electoral votes, or if one or more electors voted “faithlessly” -- abstained or voted for a candidate other than one to whom they were pledged. In 2000 one Gore-pledged elector from the District of Columbia abstained as a protest against the lack of congressional representation for the District.

The size of the House is the only component of the electoral college that can be changed without a constitutional amendment. But increase in the size of the House will not come easily. The House has maintained its present size for almost a century now, and some might fear that opening up the possibility of an increase would tempt states that covet larger delegations to push for a larger increase. A large increase in the size of the House would raise an entirely different set of issues, and would, in my view, be a mistake. But we should not put off confronting issues like that because of misplaced assuredness that an electoral college tie is nothing to worry about.

(Robert Bennett is Nathaniel L. Nathanson Professor of Law at Northwestern University School of Law; his article “The Peril That Lurks In Even Numbers” appears in the winter issue of The Green Bag.)