We all know that 270 votes in the Electoral College are necessary to elect the President. But what if nobody gets to 270?
As of right now, this moment, subject to change by the time you read this, if you look at the latest poll in each state, both Barack Obama and Mitt Romney would have 269 votes in the Electoral College.
If neither candidate receives 270 votes in the Electoral College, then the newly elected House of Representatives will select the President and the newly elected Senate will select the Vice President. (The new congress is sworn in just before the Electoral College votes are counted.) Obviously, there is no guarantee that there won’t be a surprise when the votes are counted – just because on election night, we all did the math and came up with 269 doesn’t mean that all 538 electors voted for whom they were supposed to.
When the House picks the new President, there are a few hitches. The first hitch is that each state delegation gets one vote. So California’s 53 congresspeople will vote, the majority of them will be Democrats, and collectively, they will cast one vote for Barack Obama. Texas’s 36 congresspeople will vote, the majority of them will be Republicans, and collectively, they will cast one vote for Mitt Romney. As of right now, Democrats have majorities in 15 states (Maine, Vermont, New York, Massachusetts, Connecticut, Rhode Island, New Jersey, Delaware, Maryland, North Carolina, Iowa, New Mexico, California, Oregon, and Washington); one state is tied (Minnesota); and Republicans have majorities in the other 34 states.
There are 23 states with an even number of congressional seats and if any of those states, following this fall’s congressional elections have an even split between Republicans and Democrats, they presumably would not be able to arrive at a majority for either Obama or Romney. So it is distinctly possible that neither side would have a majority of the state delegations (26) and the House would be unable to arrive at a Presidential selection.
Another hitch is that the House can pick from the three people who received the highest number of votes in the electoral college. So, knowing that the tie was coming and knowing that nobody has a majority of the state congressional delegations, it is possible that a compromise candidate could be arranged in some kind of backroom deal who receives ZERO votes in the popular vote, one vote in the electoral college, and then is voted President by the House of Representatives.
If the House were unable to select a President, then the Vice President would act as President until such time as they figure out what to do. Imagine the scenario where the Democrats gain enough seats in the House to keep either side from having a majority of the state delegations and they maintain their majority in the Senate. We could be stuck with a President Biden until after the midterm elections.
The Senate picks, by simple majority, the Vice President. The outgoing Vice President does not get a tie-breaking vote, so if the Senate is exactly 50-50 (again, a distinct possibility), then they may find themselves unable to pick a Vice President as well.
If neither the Senate nor the House are able to pick, then the order of succession is followed and the Speaker of the House would act as President until either the House was able to pick a President or the Senate was able to pick a Vice President. So in that scenario, we would have President Boehner or President Pelosi until the midterm elections.