Twelfth Amendment

Tie scenario

If President Biden wins only Pennsylvania, Michigan and Wisconsin the outcome will be a 269-269 tie in the Electoral College. This assumes that Biden does not win Georgia, North Carolina, Arizona or Nevada, each of which Trump wins. Otherwise, every remaining state is won by the candidate who won it in 2020.

Without the Nebraska Second

The models assume that except for the seven swing states, each candidate will win the states and election districts won in 2020. For Biden, the total includes a Nebraska district that centers on Omaha. Nebraska is one of two states that have this arrangement. The other is Maine. An attempt was made earlier this year to change Nebraska to the winner-take-all system used by other states. It was unsuccessful, and it is not clear if another attempt will be made. It could be added to a special session anticipated for July to deal with property tax relief. Should winner take all be implement or if the Nebraska Second this time votes for Trump, possible outcomes differ.

A tie outcome that was produced by Biden winning only Wisconsin, Michigan and Pennsylvania, now has three different possible scenarios

  • Wisconsin, Georgia and Pennsylvania

  • Wisconsin, Pennsylvania and North Carolina

  • Arizona, Michigan and Pennsylvania

Those three scenarios, which were formally wins, are replaced as the smallest possible victories by

  • Nevada, Wisconsin, Arizona and Pennsylvania

  • Arizona, Georgia and Pennsylvania

  • Arizona, Pennsylvania and NC North Carolina

Constitutional framework for a tied vote

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

U.S. Constitution, Twelfth Amendment [emphasis added]

Current situation

A majority of 50 state delegations is 26, which is currently what the Republican Party controls. In addition, Maine, Minnesota and North Carolina have equally divided delegations. The remaining 20 delegations are controlled by the Democratic party.

Following the presidential and congressional elections

If the Republican Party retains control of 26 states, it is in a position to choose the President.

If the Republican Party loses control of one state, no party has sole power to choose the President.

In that case, the provisions of the Presidential Succession Act come into operation.

Should a majority of states fail to agree on the selection of the President and also fail to agree on the selection of a Vice President, the Speaker of the House will become President on Inauguration Day or, if there is no Speaker, the President Pro Tem of the Senate. If there should be no President Pro Tem of the Senate, the Secretary of State would become President.

©2024 Richard Careaga. All rights reserved. Last modified: May 14, 2024.