Thanks to an unintended outcome from a 1961 constitutional change, it is possible for the 2016 presidential election to end in a tie vote, and there are at least three scenarios where that is a possibility.
If you recall from Civics class, the 23rd Amendment was ratified on March 29, 1961 when Ohio and Kansas approved the proposed Amendment, which gave three Electoral College votes to the District of Columbia. That changed the total number of electoral votes in a presidential election to 538 (an even number) from 535 (an odd number).
Since a tie election is only possible with an even number of votes in the Electoral College, the possibility of a tie has been present in every election since 1964. (In overall history, there have been 57 presidential elections, with 29 held in years with an even-numbered Electoral College.)
In theory, Hillary Clinton and Donald Trump could each get 269 electoral votes, which would deadlock the 2016 presidential election. A total of 270 electoral votes is needed to win the presidential race outright.
What makes the possibility of a tie election possible is the polarization of the American electorate by political party, with many states decidedly in the Democratic or Republican Party column. By most accounts, there are just 12 contested Swing or Battleground states in 2016 (as well as a Maine congressional district), as voters choose Clinton, Trump or another candidate at the polls.
The Constitution accounts for a scenario where one political ticket lacks a majority of the electoral votes in two ways. The presidential contest is sent to the new House of Representatives to decide, while the Senate decides the vice presidential contest.
There have been three runoff elections like this in American history. The House settled the 1800 and 1824 presidential elections, while the Senate picked the winner of the 1836 vice presidential contest. (The 1876 election almost faced the same scenario until a commission settled a dispute over Electoral College slates.)
And in 2012, there was a scenario that would have given Barack Obama and Mitt Romney 269 electoral votes in the November election. Then Romney would have become president with Joe Biden as his vice president.
Here is a look at how the current Swing states break down and what combinations of states leave Clinton and Trump in a 269-269 tie. Using estimates from Real Clear Politics, Clinton has an estimated 210 electoral votes in Democratic states, while Trump has 164 in likely GOP states. Up for grabs are 164 toss-up votes in 12 states and part of Maine.
Combination One: Clinton only takes northern Swing States
In this scenario, Clinton would win just Pennsylvania (20 votes), Ohio (18 votes), Michigan (16 votes), New Hampshire (4 votes) and Maine congressional district 2 (1 vote) among the Swing states in play. That leaves Trump taking four southern swing states (Florida, Georgia, North Carolina and Virginia), Iowa and three western swing states (Colorado, Arizona and Nevada. The result: 269 votes for each candidate.
Combination 2: Clinton with limited success outside Florida
The Sunshine State with its 29 electoral votes is always a big factor in presidential election years. This time, Clinton is leading in early polls there, but Florida won’t be enough for her without more than 30 electoral votes from the other swing states. For example, Florida (29), Pennsylvania (20), Nevada or Iowa (6) and New Hampshire (4) just gets Clinton to 269 votes, one vote short of a win – unless she takes the Maine district with 1 electoral vote. The bottom line: even with Florida and Maine in the Clinton column, there are several combinations that leave her one-vote short, such as just Pennsylvania (20) and Colorado (9) as Clinton states, or just Virginia (13) and Michigan (16) in the Clinton column in addition to Florida and Maine.
Combination 3: Trump wins Florida and Ohio
Losing both Florida and Ohio is usually bad news for a presidential candidate, and this year is no exception. In Clinton’s case, she could win Pennsylvania, Michigan, Virginia, Colorado and that Maine district, and wind up with 269 electoral votes. That would leave Trump taking Florida, Ohio, North Carolina, Georgia, Michigan, Iowa, Arizona, Nevada and New Hampshire.
Remember, with the House of Representatives expected to remain in Republican hands, a tie is as good as a win for Trump in that case. The Senate race is too close to call at the moment.
The X Factors
Two potential factors are unique Electoral College situations in Maine and Nebraska, and the chance of an elector picked in the election voting for someone else.
Nebraska and Maine are the only two states that award electoral votes by congressional district. Nebraska is forecast to be in the Republicans’ column with its five electoral votes, but back in 2008 Barack Obama was able to split off a single electoral vote from Nebraska by winning Omaha’s congressional district.
Currently, Real Clear Politics lists Maine’s congressional district 2 as too close to call, with the lone poll in that district giving Trump a one-point lead. (Clinton is projected to take the state’s other district and its electoral vote.)
And then there is the odd, long-shot but very real scenario of an Electoral College member becoming a “faithless elector” and switching their vote from their pledged candidate when the College’s votes are cast on the Monday after the second Wednesday of December.
Many states have laws that punish faithless electors and only nine votes have been cast by faithless electors since 1900. And a presidential election has never been adversely affected by a faithless elector. But technically, votes from faithless electors count as cast, until new Congress counts the votes on January 6, 2017. At that point, members of Congress would need to decide how to handle the issue.Scott Bomboy is the editor in chief of the National Constitution Center.
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