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.) |