What If It's an Electoral-Vote Tie?

By Matthew Cooper

The Bush-Gore race is the closest presidential contest since 1976, maybe since 1960. And when the race is that tight, suddenly the unthinkable becomes thinkable. What if one candidate loses the popular vote but wins the Electoral College vote? The fantastic, a 269-269 tie in the Electoral College, is also possible--a scenario that would put the election in Congress's hands and plunge the country into a constitutional crisis.

For those who have forgotten their high school civics, the Electoral College was a compromise between those Founding Fathers who wanted direct election of the President and those who wanted Congress to pick the President. Today's voters in each state (and the District of Columbia) don't actually vote for President but choose a slate of electors who then pick the President. This year the 538 electors--the same number as there are representatives from the 50 states (plus three for D.C.) in the House and Senate--will gather in state capitals on Dec. 18 to cast their ballots. On Jan. 6, the ballots will be counted, and the next President will be chosen. That's the way it's supposed to work. Here are some bizarre, but plausible, scenarios that are not so simple.

--THE MINORITY WINS It's not likely that a candidate will win the popular vote but lose the electoral vote. But it happened in 1888, when Benjamin Harrison defeated Grover Cleveland. If it happens this year, it's more likely Bush would win the popular vote but lose the electoral, because he will capture more states in which he will win by big margins. Indeed, Gore could win with just 17 states and D.C. Unquestionably, the electoral vote winner would be President, but he'd lack a mandate and face a crisis of legitimacy.

--THE TIE This is the wildest scenario. Bush and Gore each get 269 electoral votes. One of many ways it could happen: Gore wins California, Connecticut, Delaware, D.C., Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Washington, West Virginia and Wisconsin. Bush wins everything else, including the battleground states: Michigan, Missouri, Ohio and Florida. If this happened, the race would go to Congress--and its next House would cast its votes for President. But instead of 435 members voting individually, each state delegation would have one vote. Right now, that would tend to favor Bush, since Republicans outnumber Democrats in 27 state delegations, and they will probably keep this slim advantage. But would House members feel obliged to follow the wishes of their states, their districts or their parties, all of which could be in conflict? Or would they support whoever won the popular vote? Meanwhile, the Senate would pick the Veep. Senators would vote individually. But after the election, which party will control that chamber?

The 269-269 scenario assumes electors vote as they have pledged. But some electors have gone their own way. In 1976 a Republican Washington State elector cast a ballot for Ronald Reagan even though Gerald Ford was the G.O.P. nominee. Only a handful of electors have strayed. But in a tie race, it would take only one elector voting for Ralph Nader or his Aunt Edna to throw the whole thing off. To be sure, since electors are chosen by their parties, they're usually loyal. But only a few states require a pledge from electors. And that rule has never been tested; no elector has ever been prosecuted for breaking his word.

Could someone not on the ballot win the race? There's a meteor-landing-in-your-backyard chance. If Bush-Cheney or Gore-Lieberman won the race but, say, were caught in some scandal, the electors could vote for someone not on the ballot. President John McCain? Vice President Bill Bradley? The media would love that infinitesimal possibility. The incredible thing about the Electoral College is that it's a possibility at all.

--By Matthew Cooper