Follow me on this, because it could really happen.
On election night, the electoral map looks something like the following 2 scenarios (there are actually many more of them, but these are probably the most plausible):
(click to embiggen)
The electoral college count is Barack Obama with 269 votes, and John McCain also with 269 votes.
Now we’ve all had eighth grade government classes at some point; some of us will recall that in this eventuality, the decision for the President goes to the House of Representatives and the decision for Veep is made by the Senate. However it was not at all immediately clear to me, thinking about this today, what that would mean. Does the current 110th congress vote, or is it the newly elected congress which assembles January 3rd of 2009 that will make this decision?
According to the 12th Amendment, “the House of Representatives shall choose immediately, by ballot, the President.” So it is the current House delegation that chooses the President, and not the newly elected House. Does this mean that it is a forgone conclusion that Obama will be President then, since the current House has a 31-seat majority of Democrats? Far from it. The 12th Amendment goes on to say that “in choosing the President, the votes shall be taken by states, the representation from each state having one vote… and a majority of all the states shall be necessary to a choice.”
Didya catch that? There are not 435 votes cast such as the case with legislation. Instead, each state’s delegation is allocated 1- and only 1- vote. California receives 1 vote, and Wyoming receives 1 vote. So how does this shake down with the current US House? Currently, the Democrats have a 1 state majority (26 to 24), but this could be potentially meaningless:
It might be difficult for this majority to hold. After all, two of the Democrats’ twenty-six states are North Dakota and South Dakota, both of which will probably go for the Republican by a 2-1 margin in the popular election, and both of which are represented in the House by single members, Democrats Earl Pomeroy and Stephanie Herseth, respectively. Could both of them be counted upon to vote with their party? Could Mike Castle, the sole Republican from Delaware, be counted upon to vote with his party? Maybe, maybe not. The bottom line is that the Democratic majority in this instance would be relatively small and tenuous. There might very well be no decision reached…
NO DECISION REACHED?! I can hear the screams of the talking heads all over television now: “Constitutional crisis! Constitutional crisis! Constitutional crisis!”
This is no crisis, however; the 12th Amendment has a provision: “ if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President…”
The Veep becomes President, and this choice is the Senate’s. Ah yes, the Senate: that erudite body of dispassionate souls. First of all, it’s interesting to note that both McCain and Obama get to vote for their perspective running mates, and that Joe Biden gets to vote for himself. Even more interesting to note: the current Senate has 49 Republicans and 51 Democrats (actually 50 Democrats, but Independent Bernie Sanders would vote with the Democrats anyway), HOWEVER, Democrat #51 Joe Lieberman supports John McCain for President. The Senate vote tallies 50 to 50, another tie. As we all know, the Vice President’s only constitutional duty is to cast a vote in the case of a tie in the Senate.
Dick Cheney casts his vote, and on March 4th, 2009, Governor Sarah Palin of Alaska is inaugurated as the 44th President of the United States.
One last thing: even if the House is able to make a decision, there is still a very high liklihood (given a 269 to 269 tie) that we will have a Democrat President Barack Obama and a Republican Vice President Sarah Palin.