Every four years, Americans are reminded how little they really know about their Electoral College system. Is it really possible for a candidate to win the most votes but still lose the presidency? (Ask Al Gore.) Can close elections end up in court? (Again, talk to Al.) And is it really possible that nobody emerges as the winner? That last question comes with an added twist this year.
1. How could it be that nobody wins?
To win, a candidate needs at least 270 electoral votes, a majority of the 538 that are divided among the 50 states and the District of Columbia. A 269-269 tie is mathematically possible, though it’s never happened. This year there’s another long-shot possibility. An independent protest candidate, Evan McMullin, is in striking rangeto win his home state of Utah and its six electoral votes, which otherwise would be expected to go the Republican, Donald Trump. That raises, at least slightly, the possibility that neither Trump nor Democrat Hillary Clinton amasses the needed 270 electoral votes.
2. What happens then?
The presidential contest would move to the U.S. House of Representatives for what’s known as a contingent election. The House would choose from among the top three electoral vote-getters — Trump, Clinton and McMullin, in this hypothetical scenario. Each of the 50 state delegations would get just one vote, even California’s, the largest with 53 members. A candidate who wins the support of at least 26 state delegations would become the president-elect.
3. How would a state delegation decide?
The members of a given state’s House delegation would first conduct their own mini-election, possibly by secret ballot (which wouldn’t be necessary for the one-person delegations from Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont and Wyoming). The winner of that vote would get the state’s support. House rule-makers would likely need to decide in advance whether a majority or a mere plurality is needed.
4. What would happen if a state delegation evenly split?
That state’s vote wouldn’t be counted.
5. What about the District of Columbia?
Sorry, Redskins fans. Though D.C. residents do vote in presidential elections, their sole congressional delegate doesn’t get to vote in a contingent election.
6. Would this take place in the old or new Congress?
This mini-presidential election would take place in the incoming 115th Congress, which is due to meet for the first time on Jan. 3, 2017. That way, newly elected representatives would have a say, while retiring or defeated lawmakers wouldn’t.
7. Who would likely win?
That’s anybody’s guess, but the current makeup of Congress would appear to put Republicans in the driver’s seat. Republicans hold majorities in 33 House delegations, Democrats have majorities in 14, and three are tied. That could change, of course, based on the Nov. 8 results.
8. Could the House vote end in a stalemate as well?
9. And then what?
If the House failed to decide on a president by Inauguration Day, Jan. 20, the vice-president-elect would serve as acting president until the deadlock was resolved. Which raises the obvious question …
10. Who would choose the vice president?
Even though presidential and vice presidential candidates have come as a bundled ticket since 1804, they are considered separately in the event of a contingent election. The Senate would decide on the vice president, choosing between the two (not three, as in the House) candidates with the most electoral votes — presumably, Republican Mike Pence or Democrat Tim Kaine. The 100 senators would vote as individuals, not as delegations, with 51 votes needed to win. Kaine, as a sitting senator from Virginia whose term runs through 2018, would have the chance to vote for himself. And yes, it’s possible that this system could end up with a president and vice president from different parties.
11. What if the Senate tied, too?
If there’s no new president or vice president in place when the Obamas leave the White House on Jan. 20, the speaker of the House would become acting president. If he or she can’t, the Presidential Succession Act of 1947 would guide who is next in line.
12. So that would mean President Paul Ryan?
Not so fast. Ryan is speaker now, but he could face a challenge to staying in that post in the next Congress.
13. Has any of this ever actually happened?
Yes, a long time ago. In 1824, the breakup of the Democratic-Republican Party resulted in four different candidates running for president and receiving electoral votes. Andrew Jackson was the top vote-getter, with 99 electoral votes — 32 shy of a majority — but the House chose John Quincy Adams as president. Something similar happened following the race for vice president in 1836. The U.S. Senate decided that contest, choosing Richard M. Johnson.