It's In There!

A Constitutional lesson on the Electoral College

From a former colleague at WABC/NY:

“Hey Brian - Theoretically Kamala could elect herself President! Again, theoretically, and it has not yet happened historically if there happened to be an Electoral College tied vote the choice for President would go to Congress. Theoretically, should the Congressional vote be tied, Vice-President Kamala would have the deciding vote and therefore be able to ELECT HERSELF PRESIDENT!

S. O.B. Same Ole Bill

Hey SOB!

My Constitutional Expert and Consultant disagrees. You might want to share with friends who suffer from the same misinformation.

From Bill Greenslade:

This is not true. If there is a 269-269 tie in the EC vote the House votes for the President and the vote is by state delegations...each has one vote so 50 states equals 26 to elect. Even though the District of Columbia has 3 EC votes it's excluded from this process because it's not a state. The VP has no voice or vote in this process so she can not elect herself President. And the Senate chooses the VP in the event of a tie. See the very detailed detailed overview below.

Can there be a Tie in the Electoral College Vote?

Yes. In this article, I will explain the procedure for determining the President and Vice President of these United States in the event the November election ends in a tie and the procedures for ensuring that the office of President and Vice President are filled. If you decide to read this article and there is a tie, you’ll be a step ahead of the masses.

In a presidential election, there are 538 potential votes. The States have 535 of those votes and the District of Columbia has 3. Every State receives one elector for each congressional Representative and one elector for each of its two Senators (435 members of the House of Representatives and 100 Senators equals 535). If a State has 8 Representatives and 2 Senators, it would have 10 electoral votes in the election. The District of Columbia, which was made part of the electoral process in 1961 with the adoption of the 23rd Amendment, is restricted to the same number of electoral votes as the least populous State in the Union.

To win the presidency, a candidate needs to win a majority of the total number of electoral votes. Based on 538 potential votes, it takes 270 votes to win the election. Under this system, a candidate can constitutionally win the election with a decided majority of the people against him. It is also possible for a candidate to win the election with a decided majority of the States against him. In a 2 candidate race and each candidate receives 269 electoral votes, the election is a tie. If this happens, the 12th Amendment mandates the House of Representatives to immediately choose the President and the Senate to choose the Vice President. The same rules applies in a 3-candidate race where no individual receives 270 votes.

The 12th Amendment, which was adopted in 1804 to correct problems that arose from the initial electoral process found in Article II of the Constitution, outlines the procedure for choosing the President in the event no candidate receives a majority (270). The House reviews the lists submitted by the electors and their votes for President. The three candidates with the highest number of electoral votes are the only individuals eligible for consideration. The vote in the House is taken by State (congressional delegations determine) with each State having one vote (50 total votes). Two thirds of the States (34) must be represented and before adjournment, a majority vote of all the States is necessary to elect. The District of Columbia is excluded from this process because it is not a State.

When a majority of States have cast their vote for a candidate, that individual becomes President of these United States. Under this format, the House is not bound by the so-called national popular vote. That number is just a media and political party number not a constitutional one. Thus, a candidate who lost the so-called general election (national popular vote) by ten million votes can be elected president if the House decides the election.

In addition to the rules imposed by the 12th Amendment, the House of Representatives must proceed by a set of rules adopted for the occasion.

Unlike the election of the Vice President, there is no built in method to break a tie in the event the House delegations were evenly split between two political parties and each voted for their candidate. Even though the chance of this happening is remote, a 25 to 25 vote would result in a bigger political circus than already exists in Washington D.C. because neither party would cave and vote for the other candidate. Thus, the process could go on for weeks with no resolution.

In the election of the Vice President, the Senate reviews the lists submitted by the electors and their votes for Vice President. The top two candidates with the highest number of electoral votes are the only ones eligible for consideration. Two-thirds (67) of the whole number of Senators (100) must be present. The candidate must win a majority of whole number of Senators in order to be elected. When a candidate receives a majority, that individual becomes Vice-President of these United States.

In the event of a tie vote in the Senate, the Vice President, as the President of the Senate, would cast the tie-breaking vote. This applies to all legislation in the Senate so it’s not unique to the electoral process. Thus, it’s possible for a sitting Vice-President running for re-election to cast the deciding vote for himself or herself if the vote resulted in a tie.

It is interesting to note that under the present two party system, if the party in control of the Senate was different than the party in control of the House of Representatives, and each voted the party line, the Vice President could be from a different party than the President.

The 20th Amendment, which was adopted in 1933 and repealed portions of the 12th Amendment, provides a remedy for the problem noted above in the event the House is deadlocked on a choice for President. I omitted the details for the sake of reading time and those who are interested can look it up.

While all this might seem complex, the two constitutional amendments of the election process and subsequent legislation ensures that any political problems that might arise from an electoral tie cannot prevent the office of President and Vice President from being filled.

Note: The reason the Electoral College functions as it does is because the Constitution established a Union between the States and created a federal system of government not a single (national) government of all the people living within the States. This is also why the so-called national popular vote is meaningless and irrelevant.