Electoral College Football

by David Paul Kuhn // Published October 22, 2004 in CBS News

Only once has the House of Representatives picked a president. After two-dozen votes, the House handed Thomas Jefferson the presidency over Aaron Burr in 1800.*

The Electoral College ties and Congress chooses the president. State delegations can’t decide. The Senate splits. Republican Speaker of the House Dennis Hastert becomes president.

The scenario may seem outlandish but it’s certainly as plausible as what the world witnessed four years ago when a split Supreme Court ended the Florida recount and crowned George W. Bush the leader of the free world.

In 2004, we have new solutions that may create new problems – a federal mandate to count provisional ballots; electronic voting machines that give no paper proof that a vote has been cast.

But it’s the nearly 220-year-old Electoral College that may be the bane of Election 2004. Here are some far-fetched and not-so-far-fetched possibilities:

Electoral Vote Deadlock

How it could happen: John Kerry wins the key swing states of Florida and Pennsylvania, along with Nevada, New Hampshire, Oregon and all of Maine's split electoral votes. President Bush balances Kerry’s Florida triumph by capturing the Small Three – Minnesota, Wisconsin and Iowa – as well as Ohio and New Mexico.

Result: A 269-269 tie – provided that the other 38 states go as they did in 2000. The Constitution dictates that, in the event of an electoral vote tie, the House of Representatives selects the next president. And whether it is mighty California or meek Wyoming, each state delegation gets only one vote.

President Bush likely wins in this scenario. Republicans have the majority in 30 state delegations, Democrats in 15. Even if delegations in states that went Republican, like Arkansas and Tennessee, went Democratic and the reverse occurred in Illinois and Michigan, the Republican advantage is too large to surpass.

Only once has the House of Representatives picked a president. After two-dozen votes, the House handed Thomas Jefferson the presidency over Aaron Burr in 1800.

But should the state delegations remain split – 25 for Mr. Bush and 25 for Kerry – and the Senate breaks even, come Inauguration Day the Speaker of the House is next in line for the Oval Office. The speaker also takes the presidency in the case that Kerry-Edwards ticket wins the election and both candidates die before taking office.

A Maverick Elector – It Only Takes One

When Americans vote on Nov. 2, they are choosing electors, not the president. The number of electors a state has is its total number of congressman plus senators. For example, California has 55 electors, the most of any state, based on its 53 congressmen and two senators. Wyoming gets just three for its two senators and one congressman. The amount of congressman a state is allotted depends on population; more people, more sway in Congress.

The party that wins a state's popular vote gets to select all its electors. But federal law does not mandate that the electors follow the will of the electorate – or the party. What if one elector switched sides? Take Wyoming, what if one of its three electors went the other way?

"I can’t imagine that would happen," said Wyoming Secretary of State’s Joseph Meyer.

By all polling, Wyoming's popular vote will go Republican; it’s Vice President Dick Cheney’s home state. But one of the three GOP electors could select a Democrat.

"There have been faithless electors," said John Fortier, executive director of the Continuity of Government Commission at the American Enterprise Institute. "It has never affected an election."

Win the Popular Vote and Lose the Electoral Vote (or vice versa)

This, of course, is what occurred in 2000. Democratic nominee Al Gore won the popular vote by 500,000 votes and lost the Electoral College by 5 votes. George W. Bush became the third candidate to lose the popular vote and win the presidency.

(In 1824, John Quincy Adams won neither the popular nor the electoral vote. But he became president nonetheless with the support of the House of Representatives.)

No president has lost the popular vote and won the presidency twice. Mr. Bush could be the first.

It is also possible that he could win the popular vote but lose the Electoral College. But that's the most unlikely scenario because it requires a myriad of small states traditionally Republican to go Democratic.

A Bush-Edwards Ticket, Or Nancy Pelosi Becomes First Female President

It could happen. If the Electoral College splits for reasons already stated and it remains deadlocked until Inauguration Day, then the Speaker of the House takes office.

But what if the Democrats regain control of Congress? The speaker would most likely be the current House Minority Leader, Nancy Pelosi of California.

Speaker Pelosi would then become president provided the state delegations remained deadlocked. In the most roundabout, yet legal, of ways, Pelosi would become the first female president.

There's also a chance, however slim, that a split Republican-Democratic ticket could be elected.

Back in 1800, when Jefferson won the presidency after 36 votes in the House of Representative, Burr became the vice president, though both were from the same political party.

Today, should the House of Representatives vote President Bush back into office, the Senate, which holds the Constitutional power to select the vice president, could select Democrat John Edwards.

If Democrats win back the Senate, the majority would outweigh Vice President Cheney's tie-breaking vote. Democrats then could choose Edwards as vice president and America would have its first true unity ticket, following a most vitriolic and divisive election.

"The initial Electoral College was designed so the second-place winner would be the vice president, but the formal power is with the president," Fortier said. "A Bush-Edwards ticket... Edwards could make some trouble for the ticket."

Fortier chuckles, and adds, "I’m not sure they even give [Edwards] an office in the White House."

*CBS is mistaken, in fact John Quincy Adams was also appointed President by the House of Representatives in 1824 after no candidate received the required majority of electoral votes.