If the COVID-19 pandemic, racial unrest and the presidential election in general weren’t enough, there is one more topic that has begun to make its way into our national discussion.
What, if after the unprecedented campaigns, absentee ballots, by-mail and in-person voting, Donald Trump and Joe Biden are locked in an Electoral College tie at the end of the night on Nov. 3?
Some pollsters and political pundits are saying the scenario can happen.
Remember, it is 2020.
So what does happen if Biden and Trump both get 269 Electoral College votes? The framers of the Constitution were far-thinking and, to put it succinctly, there’s a plan for that.
First, some background.
What is the Electoral College?
The Electoral College isn’t a brick-and-mortar college, it is a process. This process was born out of a compromise the framers of the Constitution forged between those who wanted the president to be elected by members of Congress and those who wanted a president elected by a popular vote.
The Electoral College by the numbers
The Electoral College consists of 538 electors. A majority of electoral votes, in this case 270 votes, is what is needed to be elected president.
The number of electors from each state equals the number of members in that state’s U.S. Congressional delegation — one for each House of Representatives member and one for each senator.
Currently, there are 538 electors — 535 from the Congressional delegations and 3 from the District of Columbia.
Who gets to be an elector?
Actually, it takes longer to say who can’t be an elector than to say who can.
According to Article II of the Constitution, “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” That leaves most of the rest of us open for the job.
State laws vary on how electors are chosen, but they are generally picked by political parties. Potential electors are usually nominated at state party conventions, and voted on there. They are expected to vote for their party’s candidate during the Electoral College voting procedure.
What may surprise you is that on Election Day, you are actually voting for electors when you vote for candidates on your ballot. Sometimes, the elector’s name will appear on the ballot in some way paired with the candidate’s name, but not always.
How do candidates “win” the electors?
The candidate who wins the most votes in each state, with the exception of Maine and Nebraska, is awarded all of that state’s electors.
Maine and Nebraska are the only states that do not use a winner-take-all system. Instead, in these two states, one electoral vote is awarded to the presidential candidate who wins the popular vote in each congressional district, and the remaining two electoral votes are awarded to the candidate receiving the most votes statewide.
Do the electors have to vote for the person who won the popular vote in their state? In other words, cast a “faithful” vote?
There are no Constitutional provisions that force electors to vote for the candidate who wins the popular vote in the state. However, states can and some do require electors to vote the way the state does, voting for the candidate who wins the popular vote.
In July, the U.S. Supreme Court unanimously ruled in Chiafalo v. Washington that states have the power to require presidential electors to vote “faithfully” for their party’s candidate for president.
The decision says that states may pass laws that require electors to cast their votes in the way they said they would when they were nominated to be an elector.
Thirty-three states, along with the District of Columbia, require electors to vote for the candidate they have pledged to vote for.
Five of those states provide a penalty of some sort for an elector who does not vote as he or she pledged to vote. Fourteen states provide for the vote to be canceled and/or the elector replaced.
What happens after Election Day?
After the election, the state’s governor prepares a “Certificate of Ascertainment.” That document lists all the candidates on the ballot in that governor’s state, along with the names of the electors assigned to each candidate. The certificate identifies the winner in the state and gives the name of the electors who will represent the state at the electors’ meeting in December. Certificates of Ascertainment are sent to the Congress and the National Archives as part of the official records of the presidential election.
Electors meet the first Monday after the second Wednesday in December after the presidential election. That is Dec. 14 this year.
The electors meet in their respective states. They cast and count their votes for the offices of president and vice president. They do this on separate ballots. That vote is recorded on a “Certificate of Vote,” and it, like the Certificate of Ascertainment, is sent to the Congress and the National Archives as part of the official record of the 2020 election.
What does Congress do with the certificate?
They meet on Jan. 6 in a joint session of Congress to count the votes submitted. When they are finished, they announce the winners. One important thing to remember here: The members of Congress who are meeting on Jan. 6 are the members of the new Congress. All of the House members are up for election in November, and one-third of the Senate is up for election.
What happens if no one gets a majority of Electoral College votes?
Should no candidate get a majority of electoral votes, the election shifts to the House of Representatives.
In the House chamber, each state gets one vote. The state’s delegation decides who they cast the vote for. They can choose between one of the top three vote-getters in the general election.
Whoever wins a majority of those votes — 26 — is elected president. The District of Columbia has three electoral votes but is not allowed to vote in this process since it is not a state.
To pick a vice president, the same process happens, only it would take place in the Senate.
If the House of Representatives fails to elect a president by noon on Jan. 20, the vice-president-elect serves as acting president until the tie is resolved in the House, according to the 20th Amendment.
Should the Senate be deadlocked and no vice-president-elect has been chosen by Jan. 20, the Speaker of the House will serve as president until the president and vice president are selected.
Can you lose the popular vote and win the electoral college vote?
Yes, you can. In 2000, George W. Bush had fewer popular votes but more electoral votes, so he became president. In 2016, Donald Trump became president even though he had fewer popular votes than Hillary Clinton. It has happened five times in the country’s history — in 1824, 1876, 1888, 2000 and 2016.
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