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An Electoral Tie Could Bind the Senate

Douglas Graham/CQ Roll Call
If an Electoral College tie leads to the House choosing the next president, GOP nominee Mitt Romney will likely be its pick.

One of Washington’s favorite parlor games is conjecturing about the remote possibility of an Electoral College tie. Prognosticators have come up with various maps and scenarios under which the election would result in a 269-269 deadlock, which would vest the responsibility of choosing the country’s leaders squarely in what polls say is one of the least popular institutions in the country — Congress.

There’s little dispute about what would happen in the main event. Next year’s House would choose the president, with each state delegation casting one vote. Unless an unanticipated tidal wave arises Nov. 6 on behalf of Democrats in House races, Republican Mitt Romney stands to win, largely because the system would work to the advantage of smaller, rural states.

One question that has been debated in the past, whether some Members would feel pressure to ignore their own party and vote for the winner of the popular vote in their state, seems to have faded as the result of gerrymandering and rising partisanship.

“That kind of extreme partisan polarization seems to rule over everything,” said Richard Arenberg, who worked on Capitol Hill for more than 34 years, including for former Senate Majority Leader George Mitchell (D-Maine). “So many of these Members of the House have safe seats.”

“The Republicans have shown incredible discipline within their caucuses,” added former Sen. Ted Kaufman (D-Del.), who spent decades working in the Senate for Vice President Joseph Biden.

The outcome might be less clear in the Senate, which in the event of a tie would be charged with picking the vice president, with each Senator in the 113th Congress casting one vote.

One of the foremost experts on Senate rules said he sees no evidence of expedited procedures to avert a filibuster of that process.

“I have read the 12th Amendment to the Constitution, and I don’t see anything that requires the Senate to vote without debate on choosing a vice president,” former Senate Parliamentarian Robert B. Dove said. “Therefore, I don’t see what would stop Senators from speaking about who is going to be the vice president and, in effect, forcing a cloture vote.”

While the parliamentarian advises the presiding officer on procedural questions, Dove said, the responsibility to rule rests with the occupant of the chair. In the event of an Electoral College tie, that would be Biden (in his capacity of president of the Senate, until Jan. 20). Dove notes that Democratic Vice President Hubert H. Humphrey disregarded the parliamentarian’s guidance with some regularity.

Kaufman said that while all these arcane procedural options exist, cooler heads should prevail.

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