Commentary: The Electoral College, and how a tie could give us a Romney/Biden Presidency

Nov 6, 2012

You may have heard of the Electoral College.  If certain unlikely but theoretically possible election scenarios play out tonight, then in the near future you will hear more about the Electoral College than the law should allow.

You and I do not elect the President, as you know.  The Founding Fathers did not trust farmers and peasants like you and me so they concocted an independent body that could vote for a member of America’s natural aristocracy, even if – especially if – you and I preferred someone more common.

So today you and I actually voted for Electors when we voted for president, and 538 of them – equal to the number of US Representatives and Senators plus three for the District of Columbia – will gather in December to actually elect the president.

Tonight or early tomorrow we will have an unofficial indication of what the Electors will do.  Or if the election is very close, or disputed like it was in 2000, we won’t know anything.

One scenario is that one of the candidates will win the popular vote but lose the Electoral Vote.  This has happened four times, most recently in 2000.  This will lead to dismay for the loser, unpleasantness in the media, and calls to amend the Constitution.

Another scenario is that both candidates will win 269 Electoral Votes – 270 are required to win.  The chances of this outcome are estimated at 2/10 of one percent, but it is theoretically possible.  You do not want to know what the Constitution requires if this happens.

Another scenario is that one of the candidates apparently wins a tiny majority of Electoral Votes but in December when the Electors gather several of them are faithless and cast their vote for the loser or some third person or they abstain.  This will also lead to dismay for the loser, unpleasantness in the media and calls to amend the Constitution.  Maybe you do want to know what the Constitution requires.

The Constitution requires that if no one wins and Electoral College majority, then the U.S. House elects the president and the U.S. Senate elects the vice president.  But wait, here’s the interesting part: the House would vote by state delegation, so Delaware and Missouri and California all would get one vote each.  Since Republicans control the majority of state delegations, the House would elect Romney president.

And since the Senate is controlled by Democrats and each Senator gets one vote, the Senate would elect Joe Biden Vice President.

Let’s not go there.  Let’s have a quiet, peaceful, undisputed election with either Obama or Romney winning and decent Electoral College majority – and a popular vote majority while he’s as it -- and let’s have all the Electors behave themselves when they get together in December.

Ah democracy.  Ain’t it grand?