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ELECTORAL COLLEGE DEADLOCK And the Contingent Procedure

Electoral College Deadlock (cont. ) • In the event of Electoral College deadlock, the “contingent procedure” comes into effect, i. e. , – the Presidential election is thrown into the House of Representatives, • voting by state delegations (one state, one vote) • from among the top three candidates; and – the Vice Presidential election is thrown into the Senate, • voting by individuals • from among the top two candidates. – In each House, balloting continues until a candidate receives the required majority, which at the present time is • 26 states in the House and • 51 senators.

The Number of Electoral Votes • • • It might seem simple enough to preclude EV ties: • just make the total number of electoral votes an odd number. – Given that EV = HR + S and the number of Senators is always even, • just make the size of the House odd (which seems desirable itself). Surprisingly, the size of the House was fixed at an even number during five of the ten decennial apportionments during the 19 th century. – Of course, new states were admitted quite frequently, so the number of House seats also changed (perhaps from odd to even or vice versa) within decades. The size of the House was “permanently” fixed at 435 when AZ and NM were admitted in 1912. – This resulted in 435 + (2 x 48) = 531 electoral votes until AK and HW were admitted to the union in time for the 1958 election. • AK and HW were allocated 1 “temporary” House seat each, so • there were 537 electoral votes in 1960. – In the 1960 apportionment, House size returned to 435. – The 23 rd Amendment, giving 3 EV to DC was ratified prior to the 1964 election. • Since then the number of electoral votes has always been 538 (an even number).

A Sample of 32, 000 Simulated Elections Based on Perturbations of 2004 Electoral Landscape

Estimated (Symmetric) Probability of EV Tie By Popular Vote in 0. 05% Intervals (Based on 2004 Landscape)

1972: Possible Electoral College Deadlock Without a Third Candidate

Two Plausible Electoral Vote Deadlocks (269 -269) in 2008 • In each scenario, if Obama won one district EV in NB, or if Mc. Cain one district in ME, that one district would decide the election, – though if each won a district, we’re back to 269 -269. Source: Real Clear Politics, 10/03/0

2008: Possible Electoral College Deadlock Without a Third Candidate (Preliminary Vote Totals)

Final 2008 PVEV

Electoral Vote Tie • What would happen if the popular vote produced such a tie? • Despite the electoral vote tie, one or other candidate would be the “popular vote winner, ” most likely by a small but fairly clear margin (e. g. , 100, 000+ votes). – This fact would attract a lot of attention and produce some expectation that the popular vote winner should become president. • One or more “faithless electors” might break the tie when electoral votes are cast on December 15. – Should there be such “faithless electors, ” they would probably be electors pledged to vote for the “popular vote loser” who instead would vote for the “popular vote winner. ” – But contemporary party polarization probably makes such defections unlikely. – Moreover, the actions of electors would likely be influenced by expectations concerning the prospective outcome under the contingent procedure.

Electoral Vote Tie (cont. ) • If the 2012 election had produced an EV tie that is not broken when electoral are cast, the contingent procedure would come into effect immediately after the counting of electoral votes on January 6, 2012. • In the 113 th House, – Democrats control 17 state delegations, – Republicans control 30 state delegations, and – three delegations are evenly decided. • Democrats control the present Senate 53 -45 with Democratic-leaning independents. – There is dispute about whether the Vice President has a tiebreaking vote in the event of a 50 -50 vote for Vice President. • Constitution, Article II: The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. • 12 th Amendment: the Senate shall choose the Vice-President; . . . and a majority of the whole number shall be necessary to a choice.

Electoral Vote Tie: 113 th Congress

Multi-Candidate Presidential Elections • The second, and perhaps more likely, circumstance that would deadlock the Electoral College is a multi-candidate Presidential election in which – a third (etc. ) candidate wins some electoral votes, – with the result that even the leading candidate fails to win 270 electoral votes. • Despite Duverger’s Law, there have been about a dozen Presidential elections with a significant third candidate in the U. S. history. • Many (but not all) produced “minority Presidents. ” – Other “minority Presidents” have resulted from close elections in conjunction with very minor candidates (e. g. , 1960). • Other than 1824, none of these multi-candidate elections have produced an Electoral College deadlock, but – several certainly threatened to do so.

Multi-Candidate Elections (cont. ) • Apart from an EV tie, an EC deadlock requires a third candidate to actually win electoral votes, – i. e. , to win a plurality of popular votes in one or more states. – This in turn is much more likely if the third candidate has a sectional base of support. • The closer the contest between the two leading candidates, the more likely it is that a third candidate with a given amount of support can deadlock the Electoral College. • For example, over the course of the 1968 campaign, polls showed both that – Wallace’s support was diminishing; but also – the Nixon-Humphrey race was tightening up, so – the likelihood of an Electoral College deadlock actually increased.

1860 Lincoln [Rep. ] 39. 8% 180 Douglas [N. Dem. ] 29. 5% 12 Breckinridge [S. Dem. ] 18. 1% 72 Bell [Const. Union] 12. 6% 39

1860 Electoral Map

1892 Cleveland [Dem. ] 46% 227 Harrison [Rep. ] 43% 145 Weaver [Populist] 8. 5% 22

1892 Electoral Map

1912 Wilson [Dem. ] 42% 435 Taft [Rep. ] 23% 8 T. Roosevelt [Prog. ] 27% 88 Debs [Socialist] 6% 0

1912 Electoral Map

1924 Coolidge [Rep. ] 54% 382 Davis [Dem. ] 29% 136 La. Follette [Prog. ] 17% 13

1924 Electoral Map

1948 Truman [Dem. ] 49. 5% 303 Dewey [Rep. ] 45% 189 Thurmond [States’ Rights] 2. 4% 39 H. Wallace [Prog. ] 2. 4% 0

1948 Electoral Map

1960 Kennedy [Dem. ] 49. 7% 303 Nixon [Rep. ] 49. 6% 219 Unpledged Electors 0. 2% [MS] [+ AL] 15

1960 Electoral Map

1968 Nixon [Rep. ] 43. 4% 301 Humphrey [Dem. ] 42. 7% 191 G. Wallace [AIP] 13. 5% 46

1968 Electoral Map

1980 Reagan [Rep. ] 51% 489 Carter [Dem. ] 41% 49 Anderson [Ind. ] 7% 0

1992 Clinton [Dem. ] 43% 370 G. H. W. Bush [Rep. ] 37% 168 Perot [Ind. ] 19% 0

1996 Clinton [Dem. ] 49% 379 Dole [Rep. ] 41% 159 Perot [Reform] 8% 0

Uniform National Swing and Electoral College Deadlock • While none of these elections produced an Electoral College deadlock triggering the House contingent procedure, several of them would have if the vote for the two major-party candidates had been (even) closer. • We can get some sense of the likelihood of such a deadlock by using (a variant of) the uniform national swing analysis previously used to measure the width of the election inversion interval. • This entails – holding the popular vote of the third candidate constant, – while examining the effect of a uniform national swing between the Democratic and Republican candidates.

Uniform National Swing and Electoral College Deadlock (cont. ) • In this analysis, there are two critical threshold for the third candidate – If the third candidate receives more than 50% of the popular vote in a state, he wins that state’s electoral votes regardless of the vote division between the major-party candidates in that state. – If the third candidate, receives less than 1/3 of the popular vote in a state, he loses that state’s electoral votes regardless of the vote division between the major-party candidates in that state. – If the third candidate receives between 1/3 and 1/2 of the popular vote in states, he win the state’s electoral votes or not depending on how evenly the major party candidates split the remainder of the vote.

EC Deadlock Near Miss in 1948

A Slightly Less Close Miss in 1960

Not So Close Miss in 1968

Third Candidate Scenarios • In broad terms, there are two distinctive types of third candidates who might deadlock the Electoral College. • The first possibility is a insurgent (or radical or extremist) candidate (probably to the right or left of both major candidates and probably with a sectional base) – who appeals to a section of the electorate with some special grievance, and – whose goal is not to be elected President but to attract attention and try to deadlock the Electoral College and thereby become a “kingmaker. ” • Such a candidate would probably run far behind both major-party candidates in popular votes, but with geographically concentrated support would win some electoral votes. – Examples: • • • certainly Weaver (Populist, 1892) probably La. Follette (Progressive, 1924) certainly Thurmond (States’ Right, 1948) certainly unpledged elector slates (1960) certainly George Wallace (American Independent, 1968)

Third Candidate Scenarios (cont. ) • The second possibility is a centrist candidate (probably running as an independent or on some kind of “national unity” ticket), – who appeals to a broad segment of the electorate unhappy with both major parties, but – without a particular geographical basis of support, and – who may have a realistic goal to be elected President. • Such a candidate might run more or less even with both major-party candidates in popular votes, and the distribution of electoral votes among the three candidates would be highly unpredictable. – Examples: • • • certainly T. Roosevelt (Progressive, 1912) possibly La. Follette (Progressive, 1924), if he had run stronger Anderson (Independent, 1980), if he had run much stronger Perot (Independent, 1992), if he had run somewhat stronger Perot (Reform, 1996), if he had run much stronger

Third Candidate Scenarios (cont. ) • An insurgent candidate is likely to be a potential spoiler to the ideologically proximate major-party candidate, – perhaps making the contest between the two major-party candidates less close than it otherwise would be, and – thereby making it less likely that the insurgent can deadlock the electoral college. • On the other hand, a centrist candidate, drawing support away from both major-party candidates, is less likely to be a potential spoiler against one them, – perhaps thereby allowing the contest between the two majorparty candidates to remain close, and – thereby making it more likely that he can deadlock the electoral college.

Electoral College Deadlock • Suppose on the day after the election, three candidates have won electoral vote and none has the required 270. • Even as the identity of the President-elect remains unknown, the partisan makeup of the new House will be known. – If one party controls 26 or more state delegations, the outcome of a House election may be fairly predictable. • However, there may be party members in the House willing (or even anxious) to vote against their party’s President candidate. – If neither party controls 26 state delegations, there is a strong prospect of House deadlock on early ballots. • [See below on the 1825 House Rules]

Electoral College Deadlock (cont. ) • Two distinct periods of uncertainty, conflict, and bargaining will occur: – between the selection of electors [on Presidential election day] and the casting of electoral votes [in mid-December]; and – immediately following the counting of electoral votes before the joint session of Congress [on January 6]. • Each period corresponds to two distinct modes of breaking the deadlock: – bargaining over the casting of electoral votes. – bargaining in the House of Representatives, • plus possible House-Senate interactions.

Electoral College Deadlock (cont. ) • However, the outcome of the first stage may depend on expectations concerning the prospective outcome of the second stage. – On one hand, the outcome of the second stage may be quite predictable. – On the other hand, the outcome of the second stage may remain highly uncertain. • Presumably neither type of third candidate (in contrast to both major-party candidates) would have any automatic base of support in the House. – However, a centrist candidate might win in the House (as a compromise candidate), • so the outcome may be especially uncertain, while – an insurgent candidate presumably could not win in the House, • so the outcome may be fairly certain (based on party-line voting).

Before the Casting of Electoral Votes • An insurgent candidate may try to strike a bargain with one of the two major candidates, promising that candidate electoral votes in return for concessions in policy and/or personnel. – Note that an insurgent candidate has such bargaining leverage before electoral votes are cast – but loses it entirely afterwards (assuming he has almost no support in the House( • Other things equal, the insurgent candidate would expect to make a deal with the more ideologically proximate major-party candidate. • But other things probably would not be equal, since partisan makeup of the new House would be known. – The outcome of a House election might be predictable, in which case • the major-party candidate expected to lose a House election would have more of an incentive to deal with the factional candidate.

George Wallace in 1968 • George Wallace is 1968 was a very clear example of a possibly successful insurgent candidate. – Wallace extracted from each of his elector candidates a pledge to cast an electoral vote for Wallace or whomever Wallace designated, so as to enhance Wallace’s bargaining power prior to the casting of electoral votes (in the event Wallace was able to deadlock the Electoral College). – Nixon was the ideologically more proximate major party candidate, presumably more willing to make concessions on civil rights. – In the House, Democrats controlled 26 state delegations, Republicans 19, and 5 were equally divided. • However, the 26 Democratic delegations included all Southern and Border state delegation except VA [which was equally split]. • Some Southern and Border State Democrats were sympathetic to Wallace, more had constituents sympathetic to Wallace, and many probably preferred Nixon to Humphrey for President. • So the outcome of a House election would have been quite uncertain (though it was clear Wallace could not have won in the House) • The “unpledged elector” gambit in 1960 was similarly motivated.

Before the Casting of Electoral Votes (cont. ) • A centrist third candidate might seek to bargain with the major-party candidates, in the same manner as a factional candidate. – Such a candidate could more readily play the two other candidates off against each other, – since he would represent a compromise between them. • But, especially if he ran ahead of one or both major-party candidates, a centrist third candidate might try to bargain the other way, i. e. , – offer them promises in return for their support. • However, the regular party candidates could not reliably offer electoral votes the way Wallace and other factional candidates might. – Democratic and Republican electors are unconditionally pledged to support their party nominees and are bound to do so by party rules (and, in some states, by law as well). • So an Electoral College deadlock involving a centrist third candidate probably would not be resolved prior to the casting of electoral votes.

After the Casting of Electoral Votes • If no deal is made prior to the casting of electoral votes, it will be evident that the House contingent procedure [unused since 1824] will come into play. – However, nothing official could happen until electoral votes are counted on January 6. – But there surely would be much preliminary wheeling and dealing, focused primarily on the [newly elected] House or Representatives that will select the President from the top three candidates [12 th Amendment]. – An electoral college deadlock for President presumably implies also a deadlock for Vice President, and the [newly elected] Senate will select the Vice President from among the top two candidates [12 th Amendment].

The House Contingent Procedure • If the counting of electoral votes confirms an electoral vote deadlock, the 12 th Amendment requires the House “immediately” to begin balloting for President (from among the top three candidates). – The House cannot elect an appealing outside compromise candidate (e. g. , a “Colin Powell” type) other than the top three. • Unless it choose to change them, the House will follow the rules it drew up in 1825 to resolve the electoral college deadlock resulting from the 1824 Presidential election.

The 1825 House Rules • A quorum consisting of at least one member from 2/3 of the state delegations is required. • Election requires support by a majority of all state delegations, i. e. , 26 votes. – Though it has electoral votes, DC has no representation in the contingent procedure. • Prior to each House ballot, formal balloting takes place within each state delegation. – A Presidential candidate receives the vote of a state if and only if the candidate is supported by a majority of the state delegations. – If no candidate receives such support within the delegation, the state casts a “divided vote” and effectively abstains. • Balloting continues until a President is elected. • A motion for to adjourn temporarily must be supported by a majority of state delegations.

House Contingent Procedure (cont. ) • Since the House contingent procedure has never come into play since the country has had an established party system, no one has much idea as to how members of the House would decide how to vote. • House members might use any the following considerations to decide how to vote. – Vote for the Presidential candidate of my party [probably most likely]. • If all followed this norm, the outcome would be predictable on the basis of the previous Congressional election, • except that some delegations might be evenly split between the parties. – Vote for the Presidential candidate who carried my state [and won its electoral votes]. – Vote for the Presidential candidate who carried my district. – Vote on the basis of my personal preferences, ideology, conscience, etc. – Use my vote as a bargaining chip. – Work with others to try work out a reasonable compromise.

House Contingent Procedure (cont. ) • It is also unclear how the three Presidential candidates would behave at this stage. – Would they try appeal to House members on the basis of party, ideology, promises of policy or personnel, etc. ? – Might one candidate withdraw in favor of another? – Would they try to strike a deal among themselves? • At this stage, a centrist (as opposed to insurgent) candidate might play a pivotal role. – If this third candidate were him/herself an appealing compromise (a “Colin Powell” type), his/her election might be the way to break a House deadlock (even if the third candidate won few electoral votes). • How would the House election of a President and the Senate election of a Vice President interact? – At the outset, the Senate would probably wait to see what happens in the House.

House Deadlock • The House might easily deadlock for multiple ballots (like the House that decided the 1800 election). – If some House members vote for the third candidate, their delegation may remain “divided” (or even vote for the third candidate). – Even if only two candidates are supported within a delegation, even-number sized delegations may remain “divided. ” – Even if no state delegations are internally divided, the number of states is even, so the House as a whole may be divided 25 -25. • Moreover, strategic absences by a minority of members appropriately distributed over state delegations could block a quorum. • In sum, the House contingent procedure is not a strong simple game, i. e. , there are blocking coalitions. • The Senate’s role in electing the Vice President may seem to be of distinctly subsidiary importance.

The Senate Contingent Procedure • But the Senate has two advantages over the House, which may give it a critical role in the election of a President. – If the House remains deadlocked as of January 20, “the Vice President elect shall act as President until a President shall have qualified” [20 th Amendment]. – The Senate is unlikely to deadlock, since: • the 12 th amendment allows the Senate to chose only between the top two candidates for Vice President; • voting is by individuals, not delegations; • support of a simple majority is sufficient both for a quorum and for election; and • while the number of Senators is always even, the [outgoing] Vice President may be able to break a tie (though there is dispute about this). • However, a 2/3 quorum is required. • In sum, the Senate contingent procedure is an (almost) strong simple game without blocking coalitions (apart from the quorum requirement and the possibility that the Vice President cannot cast a tie-breaking vote), and therefore the Senate is unlikely to require more than one ballot.

House and Senate Interaction • The Senate would probably hold off electing a Vice President, on the grounds that they should [if possible] elect the running mate of the Presidential candidate elected by the House. – But note that it may not be able to do this, because • the House can select the Presidential candidate who came in third in electoral votes, but • the Senate cannot elect the Vice Presidential candidate who came in third. • But if the House deadlocks indefinitely, the Senate [which is unlikely to deadlock] can name the new Vice President, who would act as President as of January 20. • Since the Senate is unlikely to deadlock, it may be clear who the Senate would elect in the event the House fails to elect. • And this very prospect might break the House deadlock.