What if the Electoral College ended up tied, 269-269, prolonging this Alice-in-Wonderland campaign? That's what would happen if Barack Obama won every state that went for Al Gore in 2000 plus Colorado, or if Obama carried every state that John Kerry won in 2004 plus Iowa, New Mexico, and fast-changing Nevada.
If the electoral vote is tied, the Constitution's 12th Amendment requires that the election be thrown into the newly elected House. There, each state, regardless of population, would have one vote. The votes of 26 states would be required to elect a president. Otherwise, the Senate-elected vice president would act as president until the House could agree.
We obviously don't know the makeup of the 111th Congress, but we do know that Democrats now control 27 delegations, Republicans have 21, and two are evenly divided. So I asked my colleague, David Wasserman, the House editor of The Cook Political Report, to game out what would happen if the election were thrown into the House. He concluded that it might not be easy to reach 26 votes, given that a lot of Democrats serve districts with a long history of supporting the Republican presidential nominee. Would North Dakota and South Dakota's at-large Democratic representatives -- Earl Pomeroy and Stephanie Herseth Sandlin -- vote with their electorate or their party? Although Obama is competitive in North Dakota, he is still likely to come up a bit short and has virtually no chance of winning in South Dakota. In her 2004 campaign, Herseth Sandlin indicated that she would be open to voting for the Republican nominee -- President Bush in that case -- in the event of a tie in the Electoral College.
In half of the states, control of the delegation looks firm. Fourteen seem solidly in the Democratic column in a House unit-vote election: California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. And 11 seem firmly Republican: Alabama, Georgia, Kentucky, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, Virginia, and Wyoming.
Another six states are leaning or are likely to vote Democratic (Arkansas, Colorado, Minnesota, Pennsylvania, West Virginia, and Wisconsin), bringing the Democratic count to 20. Likewise, five are leaning or are likely to go Republican (Florida, Idaho, Louisiana, Michigan, and Missouri), raising the GOP total to 16.
But 14 states are best described as toss-ups. That includes Mississippi, where Democrats enjoy a 3-1 delegation lead but two conservative Democrats would be hard-pressed to vote for Obama. In Nevada and New Mexico, very competitive House races will determine whether 2-1 GOP delegation leads will be reversed. The other toss-ups are Alaska, Arizona, Delaware, Indiana, Kansas, New Hampshire, North Carolina, North Dakota, Ohio, South Dakota, and Tennessee.
Wasserman argues that having to decide the presidential contest would put plenty of House delegations in uncomfortable positions. For example, if Democrat Ethan Berkowitz were to unseat longtime GOP Rep. Don Young in Alaska's only House seat, Berkowitz would almost certainly seal his own defeat in 2010 if he stuck with his party and voted against a GOP ticket including the state's popular governor. GOP Rep. Michael Castle, who represents Democratic vice presidential nominee Joe Biden as Delaware's only representative, would face the same choice.
And, if Democrats were to clinch a delegation majority in Arizona by protecting both of their vulnerable seats and picking off an open seat in the northern part of the state, five Democrats would have to choose between voting for Obama and voting for their state's candidate and choice for president, John McCain.
There is no way to anticipate how members would weigh considerations such as the outcome of their state's vote or the national popular vote. But for Obama, winning the support of 26 House delegations could be harder than it sounds. For one thing, four of the toss-up states in this scenario have even-numbered House delegations, meaning that intra-delegation deadlocks could reduce the number of states available to reach the magic number 26.
This article appears in the October 4, 2008 edition of National Journal Magazine.
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