What Happens If No Presidential Candidate Wins the Electoral College?

What’s the story?

• This year’s presidential election is likely to be determined by the outcomes in a handful of key swing states with either President Donald Trump or former Vice President Joe Biden winning at least 270 votes in the Electoral College. 
• While the chance of it occurring is relatively small (between 3% and 5% according to estimates over the years) there are several scenarios in which neither candidate wins an Electoral College majority and thus the presidency, such as a 269-269 tie. 
• For example, if Michigan and Pennsylvania joined Nebraska’s 2nd Congressional District in switching their 2016 preference from Republican to Democratic a 269-269 tie would occur. Or a faithless elector from one of the 20 states that don’t bind their electors (which the Supreme Court recently found constitutional) could defect from a candidate who appeared to have won 270 electoral votes. 

What happens if neither candidate gets 270 Electoral College votes?

• The Constitution provides for the House of Representatives to hold a contingent election to elect the president in the event that no candidate wins the Electoral College, and the current process is governed by the 12th Amendment. The contingent election would begin immediately after the joint congressional session to certify the Electoral College vote, which will occur on January 5, 2021, after the incoming Congress is seated.
• In the contingent election, each state delegation in the House would vote as one for their preferred presidential candidate, and whichever candidate wins a majority of states (that’s 26 states) becomes the president. The House delegations would only be able to cast their votes among the top three presidential candidates as determined by their Electoral College tally. Based on 1825 precedent, a House delegation has to have a majority vote or it will be considered “divided”, but the House could reconsider to allow a plurality vote to guide the delegation’s will. The Senate would elect a vice president from among the top two candidates based on the Electoral College result, with a majority of 51 senators required for the vice presidential election.
• The process would continue until a president and vice president are elected. If no president is elected by inauguration day (January 20, 2021), the vice president-elect would act as president until the impasse in the House is resolved. If the Senate also hasn’t elected a vice president, then the Presidential Succession Act would take effect and the Speaker of the House would be next in line to act as president until either a president or a vice president is elected by Congress.

How would a contingent election play out in Congress?

• It’s difficult to project how a contingent election would transpire given that it would be determined by an incoming Congress of unknown composition, let alone how the reality of a contingent election would impact lawmakers’ voting behavior by increasing or decreasing their partisanship. 
• In the 116th Congress, Republicans hold a majority in 26 state delegations, Democrats are the majority in 23 delegations, and one House delegation is split ― Pennsylvania is divided with nine representatives from each party. 

— Eric Revell

(Photo Credit: iStock.com / Jamie Tuchman)