What Happens If the 2020 Election Is a Tie?
The House of Representatives resolves inconclusive presidential elections—and while Democrats may hold most of the seats, Republicans control more state delegations.
About the author: Norm Ornstein is a contributing writer for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.
What happens if the 2020 presidential election is very close? Polls suggest that’s a real possibility. And it’s a question that should shape the strategy of the Democratic Party, not just at the top of the ticket, but in the down-ballot races that could ultimately determine who sits in the White House.
If Donald Trump wins battleground states such as Wisconsin, Arizona, and Florida, he can lose Pennsylvania and Michigan, and lose the popular vote by 5 million or more, but still win the Electoral College by a single vote, as David Wasserman of “The Cook Political Report” has noted. If a congressional district in Nebraska or Maine were to vote for a Democrat, there could be a tie.
Even if the result is not that close, it is possible to imagine a nightmare scenario in multiple states like what we saw in Florida in 2000—in this case, contests about electoral votes that might have a state legislature endorsing a different set of electors than the popular-vote count mandates, or contests about popular votes and provisional ballots stretching beyond the deadline for an official electoral count. With the stakes so high, with tribal identities overcoming norms of behavior, with many legislatures in states such as Wisconsin and North Carolina having already taken extraordinary, antidemocratic steps to cling to power, it is not fanciful to imagine such situations.
What comes next under any of these scenarios? The certification of electoral votes has to be done by both the House and the Senate on January 6, after the new Congress is sworn in. If they disagree on one or more states, it’s possible that no candidate would have the 270 votes required to be president before the inauguration on January 20. So the Constitution gives the House of Representatives the authority to choose a president—but not by a simple majority vote. Rather, each state’s delegation casts a single vote. Support from a majority of the states—that is, 26—is needed to select the winner. Of course, each state’s delegation would have to calculate how to cast its vote, but it is a near-sure thing that the partisan identity of the legislators would be key.
There’s the rub, and the key to the importance of a set of House races. Right now, despite the Democrats having a comfortable majority of seats in the House, the Republicans have a majority of states—26, to be exact. The delegations from two states are deadlocked. (One of those two deserves an asterisk: Michigan went from a 7–7 tie to 7–6–1 for Democrats with the move of Representative Justin Amash, who’s called for impeachment proceedings against President Trump, to independent status.)
In several of the states, the majority is slim, and if a single congressional seat changes hands, it could change the majority or create a deadlock. That’s true of Republican states such as Florida, whose delegation splits 14–13, and Wisconsin, 5–3; it’s also true of Democratic ones such as Colorado, now 4–3; Arizona, 5–4; Minnesota, 5–3; and Iowa, 3–1. * Then there are states with a single member, such as Montana and Alaska, with one Republican apiece, and states with just two representatives, such as Hawaii, New Hampshire, and Maine, where one switch could create a deadlock.
Not surprisingly, Democrats will have many vulnerable House seats in 2020, after winning a slew of seats in red and purple districts in 2018. But some of those seats may prove more consequential than others. For Democrats, the challenge first is to maintain their majority in states such as Iowa, where three Democratic seats are toss-ups, and Virginia, where two fit that category, as well as single seats in Maine, New Hampshire, and Michigan.
Because Democrats won most of the toss-ups last time, their targets are fewer—but there is at least one seat in Florida, in the 15th Congressional District, and a couple in now-deadlocked Pennsylvania that might allow them to take control of a state delegation; and in Montana and Alaska, the controversial Republican incumbents Greg Gianforte (who body-slammed a reporter and then lied about it) and 86-year-old Don Young are targets of opportunity.
While the Wisconsin GOP, with a 5–3 advantage, has gerrymandered its congressional seats to keep the party’s edge, good candidates and an infusion of money could conceivably swing one seat to deadlock the state. (And it is manifestly in Democrats’ interest to have Amash run for reelection.) A failure to adequately fund all of these contests would amount to political malpractice.
For Democrats, the struggle will be to get the GOP below the magic number, 26, to keep the House from declaring Trump the winner, which it might not hesitate to do even if a Democratic presidential candidate wins a clear majority of popular votes and, state machinations aside, an apparent majority of electoral votes. But if the GOP no longer controls the delegations of 26 states and the Democrats do not pick up the four they need to get to 26, the House could conceivably deadlock.
What happens then? The Senate would choose a vice president by a simple majority vote. So for Democrats, taking back the Senate is a task that gains new urgency. It will be a tough battle, despite the fact that 22 Republican seats, and just 12 Democratic seats, are at stake. To pull it off, Democrats will need to keep their own vulnerable seats, in West Virginia and Alabama (the former made tougher if Joe Manchin leaves; the latter made easier if Roy Moore is the Republican nominee).
But there are also a number of vulnerable Republicans, including Martha McSally in Arizona, Cory Gardner in Colorado, Joni Ernst in Iowa, Susan Collins in Maine, Steve Daines in Montana, and even Kentucky’s Mitch McConnell. There is also an open seat in Kansas, which will be particularly vulnerable if Kris Kobach wins the GOP nomination. Democrats, who need a net pickup of four seats, would do well to persuade the presidential candidates John Hickenlooper and Steve Bullock to instead run for the Senate, and to intervene in other states to back the strongest possible nominees.
If Republicans keep their Senate majority, or if the vice president casts the tie-breaking vote, the Republican vice-presidential nominee would be confirmed, be sworn in on January 20, and, under the Presidential Succession Act, become acting president—until the House could actually settle on a presidential victor.
Scholars have contemplated these kinds of fanciful scenarios in the past, although not since the 19th century has the House resolved a presidential election. But the age of Trump is different. There is no such thing as fanciful anymore.
* This article originally stated that the Iowa delegation is split 5-3.