I know that the Electoral College is confusing and that most people have no clue that there can actually be a tie, but someone who has run a presidential campaign, like Mike Murphy (McCain 2000), should have an understanding of the rules before he goes opining about them. In this morning’s Swampland, Murphy talks about an ironic scenario that he calls ‘The Shakespeare’.

The election comes right down to the wire. The state by state results look a lot like 2004, but Obama picks up NM, CO and IA leaving the electoral college count at a razor close 269 Obama to 265 McCain. New Hampshire’s four electoral votes hold the final balance. Here’s the Shakespeare part. (Think tragedy). The same quirky New Englanders who put John McCain on the map in 2000 and saved his campaign in 2008 decide to ultimately punish McCain, to destroy that which they created. New Hampshire votes as it did in 2004 — Democratic – and the Presidency is Obama’s.

Let’s think about this for a moment. Let’s pretend that we have a ‘Shakespeare’ scenario and that New Hampshire is so close that they have to go to a recount. Here’s what would happen:

While the nation sits around waiting for the results of the recount in New Hampshire they are told that there are two potential outcomes. If Obama wins the recount, he wins the Electoral College and the presidency is his. If Obama loses the recount, then the Electoral College is tied and the vote goes to the House of Representatives, and Obama wins the presidency. Here’s how the Twelfth Amendment lays out the rules for counting the Electoral College votes (emphasis mine):

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;–The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;

and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice…

This isn’t a typical vote of the House of Represtatives, where each member has one vote. In this case, each congressional state delegation has one vote. That means Rep. Michael Castle of Delaware, a Republican, will cast his state’s vote for McCain, while the Massachusetts’ ten Democratic representatives will cast their vote for Obama. If a state has an even split of Republicans and Democrats then they will have to persuade one member to cross the aisle or they won’t be able to vote at all. And the winner requires the support of 26 states.

Ironically, the Democrats currently control (have an outright majority of seats) in twenty-six states and there is no reason to think that will change between now and when they open the Electoral College votes on the 6th of January, 2009.

The same process as above is used to determine the vice-president, but the Senate does the choosing and each senator has one vote. The Democrats are projected to win at least four Senate seats. If they win none (and lose none), and Lieberman votes for McCain (which he would), then Dick Cheney would break the tie. Would we get an Obama/Palin ticket? In this scenario, we would. But the Democrats are almost assured of picking up a least one net seat, so don’t worry.

All of this is for your education but also to point out that Mike Murphy’s ‘Shakespeare scenario’ makes no sense. If the election comes down to a 269-265 lead for Obama with New Hampshire hanging in the balance, it won’t matter which way New Hampshire swings because the presidency will be Obama’s regardless.

How likely is a tie in the Electoral College?

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