269-269: The Nightmare Scenario

This weekend we added a new aspect to our Presidential Projector called the Tale of the Tossups.  In it we provide a glimpse to our readers of where each of the Tossup states stood according to our 3BD poll average of all the polls released in the last 30 days.  With only 6 weeks left in the campaign, we also hypothetically assigned these tossups to the Presidential candidate leading in the poll average regardless of how small their lead was and the results were quite surprising.  We came up with the dreaded 269-269 Electoral College Tie.

This is actually a scenario that is not as unlikely as it once was thought to be.  I and other theorists out there have been looking at how this could actually come about and the likelihood, couples with the protracted and divisive fight that could happen is staggering.  This would make 2000 look like kids fighting over candy.  The 269-269 scenario would simply be the nastiest and most divisive fight in modern American history, making the impeachment hearings of Clinton & Nixon and the battle over Florida in 2000 look like kids game in comparison.  It is simply a nightmare so if you don’t want to stay awake at nights for the next 6 weeks, don’t proceed after the jump. 

Here is the most likely scenario in which we would reach this black hole of the American Electoral College system.  We use 2004 as the as the jumping off point and award Obama all of the Kerry states with the exception of New Hampshire.  New Hampshire has a history of voting independently from New England and John McCain has a strong following there, along with many disaffected Hillary supporters that could actually tip this state to McCain.  You then award Iowa, New Mexico, and Colorado to Obama as well.  Obama is well ahead in Iowa and solidly ahead in New Mexico.  Colorado is one of the closest races in the country but signs are pointing to Obama possibly picking this up as well.   Or to sum it up more succinctly it is the 2000 Gore states plus Colorado going for Obama.

That is the 269-269 scenario and that is exactly what we are seeing in our 3BD polling averages.

Why am I calling this a nightmare scenario?  Because the mayhem and wrangling that would occur after the polls closed on November 4th would be a nightmare.  Many Democrats wrongly think that because we hold the edge in the House of Representatives that a 269-269 scenario is an automatic win for the Democrats.  Not so.  The House of Representatives does indeed choose the President, but by implementing the little known “unit rule”.   This means each House Delegation from each state will have one vote.  So the 53 member delegation of California will have the same vote as the one member delegation from Wyoming or Alaska.  And remember this is the new Congress that will vote on this. 

But that is assuming we get to that point.  We have faithless electors to worry about.  Only about half of the states have laws requiring the electors to cast their vote exactly as indicated by the population of the state.  While it is unlikely an elector will chose to change their vote, it is not unheard of.  In 2000 Barbara Lett-Simmons a Democratic elector from DC abstained from voting to protest DC’s lack of Congressional Representation.   There have been a total of 156 cases where electors have changed their vote, though 71 of those were because of a death in the original candidate they were pledged to.  None of the 81 cases of electors changing their whims due to personal preference changed the outcome of an election, but we have not had a 269 tie scenario in almost 200 years either.

We should also mention that 2 states, Maine and Nebraska, award their Electors differently than the rest.  All other 48 states and the District of Columbia awards their electors via winner take all allotments, meaning the winner of the popular vote takes all EC votes for that state.  Maine (4 EC votes) and Nebraska (5 EC votes) have enacted rules stating that the winner of the popular vote in their state would get 2 of their elector votes, the remaining to be divided amongst their Congressional districts (Maine has 2, Nebraska has 3) so that the popular vote winner in those districts would get one vote each.  There has not yet been a time where the congressional districts of the state differ from the popular vote totals, and really the only case where it might change is the Nebraska 2nd District which is East Omaha and the Northern suburbs which has a distinctly different Urban flavor then the rest of Nebraska, but even there it is unlikely to vote for Obama over McCain, who is the expected winner of Nebraska.

Likely Makeup of 2009 Congress

However for the sake of continuing down this treacherous road, let’s assume that there are no state recounts and that the Electors do their duty and vote a tied ballot.  The newly seated Congress will sit in Joint session on January 6, 2009 to vote for the President and Vice President.  As we stated earlier, the House will choose the President by a majority vote of House Delegations (26 out of 50) while the Senate will choose the Vice-President by majority vote (more on that later).

In the current makeup of the 2008 congress Democrats have the majority in 28 State Delegations and the Republicans have a majority in only 21 with 2 states in a Tie.  However a 10 of those Democratic Majority Delegations are one vote majorities where they could switch with just one change in the makeup of the Delegation.  Also an additional 8 Democratic Majority states could switch to a tie by losing one of their Democratic seats to a republican.  Conversely on the other side 10 GOP Majority states are one vote delegations, and 3 additional could switch to tie with the loss of one GOP member.    Of course the two that are tied could switch on one race flipping with either party. 

What does this mean?  It means looking at the current makeup of Congress will give us very little indication of where the votes will lie in January of 2009 should this nightmare become reality.  So instead we will look at where the 2009 House Delegations may be using the Cook Political reports ratings of house races.  States listed as Strong for either party mean that there is very little chance that the Majority projection will be wrong because of the strong rankings of the individual house races in these states.  States listed as likely are depending upon a races listed as “lean” to give the Party its Majority.   State listed as Tossups will have their majority decided by congressional races currently rated as a tossup by Cook Political reports.

Strong Dem (22):  AR, CA, CO, CT, HI, IL, IA, ME, MD, MA, MN, NJ, NY, NC, ND, OR, RI, SD, TN. VT, WA, WV

Likely Dem (3):  AZ, IN, WI

Tossup (9):  AK, KS, LA, MS, NV, NH, NM, OH, PA

Likely GOP (2):  MI, MO

Strong GOP (14):  AL, DE, FL, GA, ID, KY, MT, NE, OK, SC, TX, UT, VA, WY

So on the face of it looks like Democrats should have 25 States in the bag and only need to pickup one of the remaining Tossup states to get a 26 seat majority.   And you do need 26 affirmative votes, you keep voting until you get it.  Democrats should not breathe easy though, as even if we have a majority of delegations we may not win the votes.

The Red State Problem

In the above scenario 8 Of the Democratic States and 7 of the Tossup States would be, hypothetically in McCain states.  They are:

Dem:   AZ, AR, IN, NC, ND, SD, TN, WV

Tossup:  AK, KS, LA, MS, NV, NH, OH

If the Democrats have only a small majority of House delegations (say 26-24) there could be tremendous pressures on Democratic congressmen in vulnerable districts in Dem states or Tossup states to change their vote.  Every one of these states could have small one vote majorities for the Democrats, making a single switch vote could determine the fate of the presidency. 

While it may seem unlikely, a congressman will bow to this pressure, I can envision other scenarios where they may do so.  As the race continues to get close the tie Scenario could become an issue in individual congressional races.  Some young congressional candidates could, under pressure, pledge to vote the way their state or even congressional district votes, taking the choice out of their hands.   We saw this in the Democratic Primary as many Super Delegates vowed to cast their vote based on scenarios outside their control, such as Heath Schuler vowing to vote for the winner of his NC congressional District or Nancy Pelosi vowing to vote for the winner of the delegate count, or some who vowed to vote with the winner of the popular vote.

There are cases on the GOP side where same pressure may be brought to bear, we Democrats are not specifically good at doing this nor are we as disciplined in resisting this pressure.  It is one of the things I like about the Democratic Party that we do not follow in lock step to the same drummer.  But on vital issues like this one it can be our Achilles’ heel and some freshmen Democrat in rural West Virginia can sink our hopes and country for the next four years.

The DC Issue

One thing that is unclear is whether the DC representative will be allowed to vote in this tiebreaker responsibility.  Amendment 23 of the constitution gives DC electoral votes however as you probably know the DC only has one member in the House of Representatives.  This member is a non-voting member on the house floor, though they sit on committees and are elected by the citizens of the district.  So more than likely this representative would NOT be allowed to vote in case of the tie-breaker scenario.

However it is not as cut and dry as that.  The 23rd amendment states that the DC electors

“shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.”

The 12th Amendment of the constitution lays out the basic rules for the Electoral College vote, including the tiebreaker scenario.  I would bet real money that between the time of the election and January 6, 2009 someone will file a brief with the Supreme Court asking for a ruling on whether the DC representative would be allowed to participate in the tie breaking scenario.  While the majority need of 26 won’t change, this would be almost assuredly a definite pickup for the Democrats and possible insurance against a switch.  Since there is no precedent as the District had no Electoral rights in the elections of 1800 & 1824 the last time we had Electoral College ties, the decision is far from a sure thing.

The VP Issue

As I said earlier the Senate in a majority vote decides the role of Vice President.  Most experts believe that the Senate will be handedly Democratic in the fall election with as many as 55 votes Democratic.  This almost assuredly means that Biden will be picked as the country’s Vice-president.  However consider the possibility that McCain perhaps could be selected by the House of Representatives.  That would give us a split Executive Branch for the first time in Modern American History.

Yet imagine what this would mean for the country, and I am not talking about gridlock.  That is actually an upside considering the outcry from the public that parliamentary rules will be used to rob the country of the promise of a history making election.  In a race where we as a nation are poised to break the string of White Men in the executive branch to see the possibility of where it could be taken away by little known procedures will make the protests of 2000, and possibly of the 60’s, pale in comparison to the vitriol and uproar over what surely will be perceived as white men cooking the books for themselves, again.  As a white men living in a house full of women in a pre-dominantly African American neighborhood, I probably won’t leave my basement for months.

In a far far far more unlikely scenario it is possible that Sarah Palin still gets selected VP.  If somehow the projections are off, or the Democrats have a Mark Foley-esque scandal, it is possible the GOP either wins control of the Senate or gets a tie and Joe Lieberman breaks ranks.  However with GOP Senators like Chuck Hagel already voicing their displeasure I doubt that this scenario is likely at all.

The Inaugural Deadline Issue

And now we have the last major issue.  If the House of Representatives can not choose a President by inauguration day (and remember many delegations could be tied making a 26 vote majority hard to come by) the Vice President chosen by the Senate would serve as acting President until the House makes a decision.  Leaving the possibility of President Biden on the table.  If somehow the Senate and House are both deadlocked then the house can choose ANYONE it wants to serve as Acting President until it decides who the actual President is.  This could mean the election of President Nancy Pelosi, something even this incredibly liberal Democrat shudder at.

So behold with fear the impending doom that a 269-269 scenario could bring on this country of ours.  All the more reason for Obama to get to 270.  So if you live in NV or NH and can help swing those small states along with Colorado then do it.   Otherwise the longest election season in our country’s history will extend into the holidays and the next year and beyond. 

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