If an Electoral College tie leads to the House choosing the next president, GOP nominee Mitt Romney will likely be its pick.
“The mood of the American people would be very powerful,” Kaufman said. “I don’t think Congress is in a strong enough position” to go away from the electorate. Kaufman suggested that there might be pressure on the Senate to follow the popular vote, regardless of the Electoral College tally.
Another option would be to acquiesce and appoint the running mate of the president selected by the House. One precedent might be the 2000 election, when Democrat Al Gore accepted the ruling of the Supreme Court in the disputed Florida election results in the interest of national unity.
“In general, party unity within the White House makes sense. But there is no requirement, and we’ve had presidents of one party serve with [vice presidents] of the other,” said Vikram David Amar of the law school at the University of California, Davis. He has written about the history of the Electoral College.
Things could get rough if the Senate is tied 50-50. Based on the amendment’s requirement for a majority of Senators, Dove said he thinks that the vice president could not break a tie.
The 12th Amendment was ratified four years after the infamous 1800 election, in which the House broke a tie between Thomas Jefferson and Aaron Burr, picking Jefferson on the 36th ballot. The House chose John Quincy Adams over Andrew Jackson in 1824, but John C. Calhoun won the Electoral College vote for vice president. The only time the Senate selected the vice president was after the 1836 election, when several state ballots had different running mates for Martin Van Buren. It chose Richard M. Johnson, a Kentucky Democrat.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.