I don't understand who the idiot was who decided that a tie should be possible in the electoral college. Truly-who was the idiot who came up with such a concept? But if a tie happens (and no elector goes rogue, and boy howdy would there be a lot of pressure on an elector to go rogue), the constitutional solution is pretty clear here-the person who has the majority in the House is the president, and the person who has the majority in the Senate is the vice president.
This would point to, you'd assume, a situation where we'd have a President Biden and a Vice President Pence, right? That, oddly enough, is not correct, because it is not a majority of the House, but a majority of the House delegations that gets to pick the presidency. In a situation more warped than the electoral college itself (where a state like Wyoming has an outsized role in picking the president compared to California), here we have a situation where Wyoming and California are exactly the same, despite the latter having 39 million more people. And despite having a clear majority in the House, the Democrats don't have a majority of the state delegations, as states like Wyoming, Alaska, and the Dakotas all are able to easily counter states like New York & California where the Democrats have an enormous lead. The Democrats have a majority in 23 delegations (well, 22 with a caveat in Michigan thanks to Justin Amash), with Republicans having 26 delegations (Pennsylvania is a tie). This would mean under the current makeup, unless some members of the House GOP defected to vote for the Democrat (even if the nominee was winning nationwide by 5 million, it's difficult to imagine anyone other than Amash not voting for Trump in this scenario), Trump would win in an electoral college tie.
Except, there's an election between then and now for Congress too. Congress would cast their ballots in this scenario on January 6th, so it would be the new Congress, not the old, that would cast the ballots for president, giving the Democrats a fighting chance if they were to win a few seats. In order to do this, the Democrats would need to either maintain their lead in Michigan and win three more delegations to hit 26 or would need to win four if Amash's seat reverted back to either he or the Republican Party. I wanted to take a look at exactly what it'd take to do this, and so below we're going to list from most-to-least likely the House delegations that could flip, with #1 being the state whose delegation the Democrats could conceivably take most easily, and eighth being the one where I could see them under a theoretical (though implausible) scenario winning (I don't include states like Arkansas or Utah where it's outside the realm of possibility that the Democrats could gain the majority).
Before we begin, though, it's worth noting a couple of things. First, despite getting a vote in the electoral college (and thus, presumably they should get a say here), the District of Columbia does not factor into this conversation-DC wouldn't get to be one of the 26 delegations that could vote for the Democratic nominee. As a result, there is the potential for a tie of 25-25, in which case the victor in the Senate would get to become president (we'll get to what happens then after our lists).
Secondly, there are a few precedents set by the presidential election of 1824, the vice presidential election of 1836, and the 12th Amendment that we're going to be following for this article, but might be debatable (the 12th Amendment deals with what happens in the case of a tie in the electoral college, and those two elections are the only times that a "contingent" election where a majority of votes were not achieved in the electoral college occurred). First, based on the 1824 presidential election, it was ruled during the contingent election that happened the following year in 1825 that a majority of delegations must elect a president. This means, with 50 states, that 26 delegations must vote for a presidential candidate to win. If President Trump weren't able to get a majority (either because of a 25-25 split or more likely because a state like Pennsylvania would remain tied and couldn't choose a presidential candidate), then again, no candidate would win in the House and the Senate's choice for vice president would be sworn in as president. This is not mandated in the 12th Amendment, though, and the House could change the rule if they so chose to make it a plurality. Considering if the House is close enough that Trump isn't able to win a clear majority that the Democrats are in charge, it's almost certain they would not make it easier for him to win in such a circumstance, and so let's assume that the Democrats either want to hit 26, or at the very least want to prevent Donald Trump from getting to 26.
Lastly, it's entirely possible that the Democrats would lose a delegation's majority, though it's less likely than you'd think. The only two states where this is plausible are Minnesota (5D-3R) and Arizona (5D-4R). In these two states, three Democrats (Angie Craig in MN-2, Collin Peterson in MN-7, and Tom O'Halleran in AZ-1) represent seats that Donald Trump won in 2016 and are therefore more vulnerable to being beaten. Peterson & O'Halleran both won in 2016, however, while Trump was winning their seats, and Craig represents a district so marginal it's entirely possible that Trump will lose there in 2020. Plus, MN-1 and AZ-6 are both real pickup opportunities for the Democrats, so let's assume that no Democratic delegation goes red or to a tie, and the Democrats need to win four delegations in order to hit 26.
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| State Auditor Eugene DePasquale (D-PA), candidate in the 10th district |
Current Delegation: 9R/9D
Net Needed for Democrats: +1
Best Options: In the case of a close election, Republicans either need to have an unpopular incumbent falter, or Trump doesn't have the coattails to carry a down-ballot race. Pennsylvania is the easiest state to see that happening. Assuming all Democratic incumbents win (we'll be assuming throughout as it takes away more variables so I'm only saying it this one time-a 269-269 result means the Democrats over-performed 2016 and probably won the nationwide popular vote by 4-5 million, in which case the House elections would have been friendly to them), you have three seats that could swing, and the Democrats only need one. PA-1 is on-paper the best option. It went for Hillary in 2016 (one of only three seats the GOP holds in the House that went for Clinton), and both Sen. Bob Casey & Gob. Tom Wolf won it by double digits in 2018. Democrats have also recruited a strong candidate in PA-10 and are poised to get a good candidate in PA-16. Both these races were won by the GOP House candidate in 2018 by less than 5-points, and both went for Gov. Wolf, showing that Democrats can win there (only the 10th went for Casey). If the Democrats won any of these three seats, they'd take the delegation majority.
2. Florida
Current Delegation: 14R/13D
Net Needed for Democrats: +1
Best Options: The Democrats best options would probably be either FL-15 or FL-16 (unless Mario Diaz-Balart retired, in which case all bets would be off as that seat may well vote for the Democratic nominee in 2020 considering the trend amongst Cuban-Americans to swing to the left). Both seats swung hard for President Trump, but have decent recruits from the state legislature for the Dems, and in the case of FL-15, had a recent close race with a damaged Republican candidate. That candidate, Ross Spano, got into ethical troubles almost immediately after the new Congress started, and if the Democrats could take advantage of that (and keep the presidential margin close), it's possible they could take out Spano with State Rep. Adam Hattersley and take the delegation's majority. If that were the case, Florida would be possibly the only state (outside of Arizona) that goes for Trump for president but has a Democratic delegation.
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| State Rep. Jon Hoadley (D-MI) |
Current Delegation: 7D/6R/1I
Net Needed for Democrats: +1
Best Options: It's hard to tell what Justin Amash were to do in this scenario. Under the rules of 1825, a majority of the state delegation would be required to not provide a "divided" result to the House. As a result, this would still be a tie unless Amash were to go for the Democratic nominee. I'm assuming he'd vote for some random conservative (perhaps himself) for president, and this would remain divided so the Democrats would need a pickup of one seat to not have to worry about the independent legislator. That seat would either be Amash's MI-3 or MI-6. Both of these districts went for President Trump in 2016, and both went to Republican Bill Schuette for governor in 2018 despite Gretchen Whitmer taking a near-double digit victory statewide (though Whitmer came within half a percentage point of beating Schuette in both districts). The 6th, though, nearly went for Barack Obama in 2012 (and did vote for him in 2008), so a Democratic victory is possible here (they have a good candidate in State Rep. Jon Hoadley). The 3rd might be more promising, though, if Justin Amash is running as a third party candidate. If Amash can pick off conservative voters who don't like Trump, a Democratic nominee like Nick Colvin might be able to take this seat with a plurality. Colvin almost certainly couldn't win in a head-to-head (and as a result would be a probable one-term wonder come 2022), but that one-term wonder could be enough to give Michigan Democrats a majority in the delegation for the next Congress, and get the Democratic nominee to 25 delegations.
4. Montana
Current Delegation: 1R/0D
Net Needed for Democrats: +1
Best Options: Here's where we jump from the "plausible" to the theoretically possible. Getting to 25 would take some work, but there's clear seats where it's possible it could happen (Michigan, Florida, & Pennsylvania are all achievable). Getting to 26 would require something close to a miracle. One place that miracle could occur is Montana, where the House seat is open since Rep. Greg Gianforte is running for governor. Gianforte only won the seat by 4-points last year, and Jon Tester showed that the Democrats can still win the state, albeit perhaps Tester is the only senator who could win in such a scenario. Still, the Democrats have two good candidates in 2018 challenger State Rep. Kathleen Williams and State Rep. Tom Miller. In a world where, say, the Republicans ran another piss-poor candidate like Gianforte it's possible one of them wins the seat and gives them the delegation. Not likely, but possible.
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| Alyse Galvin (D-AK) |
Current Delegation: 1R/0D
Net Needed for Democrats: +1
Best Options: The other option is in Alaska, where we're probably looking at a rematch between Dean of the House Rep. Don Young (R) and Democrat Alyse Galvin, who gave Young his toughest election in a decade. Young is famously ill-tempered, and Galvin proved her mettle in 2018. Young could create gaffes that would be reminiscent of Ted Stevens (who lost a federal election in 2008, the last Republican to do so in the state), that could theoretically endanger Young's seat (Galvin was recruited, so at least internals show she's worth pursuing), but there has yet to be a gaffe big enough to derail Don Young (and he's had a boatload of them). Probably not a possibility, but worth mentioning.
6. Kansas
Current Delegation: 3R/1D
Net Needed for Democrats: +2 (+1 for a tie)
Best Options: Democrats are not going to win two seats in Kansas, but the last three states shift from trying to get 26 delegations to just trying to prevent Donald Trump from getting 26 delegations (ie-try to throw the election to the Senate). In 2018, Paul Davis lost the 2nd congressional district by less than one point. While it's unlikely Davis makes a third run for such a major office (he lost both there and in the 2014 gubernatorial election), Trump's approval in Kansas is low, and it's clear that the Kansas City suburbs and surrounding area are starting to turn the 2nd & 3rd into plausible spots for the Democrats to do well, eventually making statewide conceivable. Combine that with Kris Kobach as an option for the Senate nominee (I can't find the numbers, but I'd imagine that Laura Kelly came close to beating him in the 2nd, if not taking him outright), and you have the recipe for a candidate to sneak in against a poor candidate (Steve Watkins) in the 2nd. If that were the case, Kansas would be a tie for the electoral college and would take a vote away from President Trump.
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| State Sen. Wendy Davis (D-TX) |
Current Delegation: 23R/13D
Net Needed for Democrats: +6 (+5 for a tie)
Best Options: Weirdly this is about as likely as the Democrats winning Kansas's sole congressional district. Currently one Texas seat (TX-23) went for Hillary Clinton in 2016 and is held by a Republican. Let's assume for the sake of argument this is a non-negotiable if the Democrats want to tie the Texas delegation (because it is a non-negotiable in such a scenario). Next we need to look at the 2018 Senate race, where Beto O'Rourke came close to beating Sen. Ted Cruz (Beto or someone of his caliber would need to be the nominee to make this work as well). O'Rourke won the 23rd, but he also won the 10th & 24th districts. If the Democrats won all three of these (they're contesting all three), they'd still need two more seats, seemingly making this an impossible climb. However, O'Rourke lost by less than 5-points in the 2nd, 3rd, 6th, 21st, 22nd, & 31st congressional districts (and the 22nd just became an open seat). If the Democrats could build off of O'Rourke's lead here with decent candidates (they did, after all, just recruit Wendy Davis to run in the 21st), they could theoretically nab 2-3 more seats making Texas's congressional delegation in play. It's not probable, but it's worth mentioning because O'Rourke proved it's theoretically possible.
8. Wisconsin
Current Delegation: 5R/3D
Net Needed for Democrats: +2 (+1 for a tie)
Best Options: The best results for a Democrat statewide in Wisconsin in recent history are Tammy Baldwin's in 2018, where she won statewide by over 10-points. Even with this victory, though, Baldwin didn't win any congressional districts that the Republicans won in the House. She came close (the 1st she lost by less than a point, the 8th by less than 3 points), but even with a candidate of Baldwin's stature, the Democrats couldn't win here. Still, this is probably the only other state where the Democrats could conceivably take a seat, particularly with State Rep. Amanda Stuck running in the 8th, and the Democrats having run a poor candidate in the 1st in 2018 (so there's room for improvement). It's not something that anyone should count on, but I'd be remiss in not at least mentioning the state in an article like this.
Finally, it needs to be stated that the Senate also has an odd rule where they need a majority of the Senate as well. Like the 1825 rule, this isn't required under the Constitution, and considering this is Mitch McConnell we're talking about, it's near certain that the Senate would overrule that so that Vice President Mike Pence might be able to cast a tie-breaking ballot to make himself VP (or perhaps POTUS), but let's assume McConnell isn't able to do this (perhaps the Supreme Court mandates that he follows the rules of 1836), and that all Democrats & Republicans vote for their nominee (I could see Joe Manchin or even Kyrsten Sinema getting itchy about this). The most likely scenario for a 50/50 Senate is Democrats take Maine, Colorado, Arizona, & North Carolina (losing Alabama), though that's hard to imagine that Tillis would lose but Trump would win (to a lesser degree, the same could be said for Kelly in Arizona, but McSally's recent loss there proves she has the ability to lose). A more plausible explanation might be Kris Kobach causing the Kansas Democrats to win through the GOP nominating a poor candidate. Either way, while it's likely a tie vote would mean the D's had a good House night, they should be doing better than a tie if they are planning on winning the Senate. If for some reason we had a third tie, Speaker of the House Nancy Pelosi would pick up the pieces of this election and become president.
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