By Ted Venetoulis
6:00 AM EST, November 5, 2012
A number of news reports have suggested the possibility of the presidential election ending in a draw — both candidates garnering 269 electors. You need 270 to win.
A long shot?
Maybe. It happened in 1800, when Thomas Jefferson and Aaron Burr each ended up with the same number of electors, proving that even the Framers weren't immune to the law of unintended consequences. Their solution to such an event produced one of their most formidable compromises: the "contingent" election, where the failure of any candidate to achieve a majority of electors would result in a vote by the House of Representatives, with each state casting one vote. A majority of states were required to win. The choice of the vice president fell to the Senate, voting individually, with a majority required to win.
Embraced by the Federalist "lame duck" Congress (also an unintended consequence of the electoral compromise), Burr became the vehicle for the Federalists to steal the election in the House that they had just lost in the country. Republicans, having just routed the Federalist in the popular vote and in congressional races, were, of course, absolutely livid.
Enter Alexander Hamilton, the de facto Federalist leader who could have been the Federalist presidential nominee had he not been born outside the country (not Kenya), and whose dislike of Jefferson was trumped only by an almost pathological hatred for Burr, his longtime New York political rival. Hamilton recognized the sordid takeover maneuver was ill-advised, concluding that the nation was better off with Jefferson than Burr. (Think Karl Rove endorsing Barack Obama.) Hamilton arranged for a friendly Delaware Federalist who controlled the state's single vote to switch. On the 36th ballot, Hamilton got his wish — Jefferson became president. Two years later, Burr got his revenge, shooting and killing Hamilton in a duel.
Is another contingent election on the horizon? Why not? It's close enough. Picture this:
Election night, the votes come in and there's no clear winner. The next morning we wake up with an electoral hangover: the tie.
What happens next is up to the electors who will meet in their respective states sometime in December to officially cast their votes. Although electors traditionally have voted for the ticket that carried their state, nothing compels them to do so. On a number of occasions — going back as far as 1796 — electors have ignored election results and done what they pleased (another unintended consequence). Scholars call these mavericks "faithless electors." The shift of three disaffected Republican electors in 2000 would have made Al Gore, who had won the popular vote, the winner in the Electoral College as well.
So, between Election Day and when electors cast their ballots, one can imagine partisans scouring the landscape for one weak elector — one willingly "faithless" character who, for whatever reason, might flip. Maybe for ideological reasons. Maybe for an ambassadorship. But maybe for the attention and rewards lavished on the person who could individually pick the next president. In this celebrity-infatuated society he or she might easily enlist an agent (why not?) to corral millions in book deals, movie rights, television specials, sponsorships — the works.
Far-fetched? Maybe. But let's see where the law of unintended consequences might take us next.
Let's say the electors behave the way they should, and the election is dumped into Congress for the House to pick the president and the Senate to pick the vice president.
If the House can't get a majority of states behind one of the presidential candidates, the newly elected vice president becomes acting president. Under current circumstances, it appears the Senate could be evenly split, allowing the incumbent veep to vote to make himself the next veep: Joe Biden picks Joe Biden. If the House, with its current Republican majority, finally breaks its deadlock by selecting Governor Romney as president, we would witness the joyous national spectacle of the union of Mitt Romney and Joe Biden running the nation — the ultimate in bipartisan slapsticks.
But assuming the law of unintended consequences knows no bounds, there is one other scenario.
The House deadlocks. The Senate deadlocks (an unlikely but possible scenario). A double deadlock.
Under these circumstances, the House speaker becomes acting president but must resign both as a House member and as speaker. Why would John Boehner or Nancy Pelosi give up the speakership for a tenuous period of days or weeks before their colleagues finally come up with a winner? Nothing compels them to accept. One suspects either would say, "No thanks." Next in line is the Senate president pro tem, who would probably say the same.
Assuming no one wants to relinquish an exalted position for a temporary White House stint, succession falls to the Cabinet — beginning with the most senior office.
Guess which office? Guess who?
Ted Venetoulis, a local publisher, is a former Baltimore County executive and the author of "The House Shall Choose," a book about the two presidential elections that were decided in the House of Representatives. His email is firstname.lastname@example.org.
Copyright © 2014, The Baltimore Sun