Fix Plan B

Posted October 18, 2004 at 4:04pm

Amid all the debate over the numerous shortcomings in the nation’s electoral system — the flawed voting machines, the continuing influence of big money, the allegations of voter fraud — too little attention has been spent on a looming constitutional problem: the “contingent election.”

Under the Constitution, a presidential election in which no candidate receives a majority of the Electoral College vote is thrown into the House of Representatives. There, each of the newly elected state delegations casts a single vote for president, with a 26-state majority required to win. At the same time, a majority of the Senate chooses the vice president.

Even without getting into the system’s more bizarre permutations — delays that could force the Speaker or the President Pro Tem to be named acting president, or a partisan walkout that deprives the majority of a quorum to act — the current design is rife with problems that could become reality this year.

First and foremost is the possibility of a 269-269 Electoral College tie. One plausible tie scenario, triggering a contingent election, involves Democrat John Kerry winning Florida, Nevada, New Hampshire, Pennsylvania, Oregon and all of Maine’s electoral votes, and President Bush capturing Iowa, Minnesota, New Mexico, Ohio and Wisconsin. This assumes that the other states follow their historical patterns, and that Colorado voters decide against splitting their state’s electoral votes in a ballot initiative this year.

In this scenario, any state with a tied House delegation, such as Minnesota and Wisconsin currently, would effectively be stripped of its vote, unless one of its House Members decides to cross party lines. (The District of Columbia, as usual in Congressional balloting, has no contingent-election vote.)

Moreover, if present House lineups hold, voters across the country may find their state’s presidential preferences voided. Currently, such Republican-leaning states as Arkansas, North Dakota, South Dakota and Tennessee would likely see their state support the Democrat, while voters in such Democratic bastions as Connecticut, Illinois and Michigan would see their House Members approve the GOP candidate. Another hazard: A newly Democratic Senate (or a Democratic minority that successfully wooed a moderate Republican or two) could tap John Edwards to be President Bush’s second-term vice president.

Fixing the contingent-election system isn’t easy, because it entails amending the Constitution. But conceptually, it’s simple. Rather than junking or radically reforming the Electoral College, one simple potential remedy would be to pass an amendment that awards — solely in the event of a 269-269 tie — a bonus electoral vote to the winner of the national popular vote. This modest reform would let the voters, rather than a Rube Goldberg-style contingency system, have the final say.

Obviously, there is no time before this year’s election to amend the Constitution. And our experience watching the House alternately dither and demagogue on such urgent institutional issues as the continuity of Congress gives us little confidence that the issue will be addressed in a timely and satisfactory fashion. GOP resistance to eliminating contingent elections seems especially likely given that the party currently stands to benefit from one. But if the worst-case scenario of an Electoral College tie eventually comes to pass — and if Congress did nothing to fix the problem — it would bear the burden of having further damaged an electoral system already weakened by widespread public cynicism.