What happens on election night if President Obama and Mitt Romney end up in a 269-269 electoral tie?

MSNBCs Rachel Maddow Wrongly Believes An Electoral Tie Could Create President Boehner

Image: MSNBC screen grab

Apparently, that is one of the hundreds of possibilities being talked about as the rest of the country endures the candidates’ swing state saturation sprint to the finish line. MSNBC’s Rachel Maddow seems to think that one of the possible situations would give Speaker John Boehner the presidency.

Here’s how Maddow explained the math:

  • If Obama and Romney each win the states currently believed to be solidly in their camp, the election comes down to a handful of swing states.
  • Obama could win Ohio, New Hampshire, and Wisconsin — that would give him a total of 269 electoral votes.
  • Romney could grab Nevada, Colorado, Iowa, North Carolina and Florida — which would put him at 269.
  • Neither man would have enough votes to be declared the winner.

This is where the wisdom of the Founding Fathers shines. According to the 12th Amendment to the Constitution, in the case of an Electoral College tie, the selection of the president moves to the House of Representatives. And, unlike the electoral votes assigned to each state, in this case each state gets a single vote for president.

If they voted the way their states did, Romney would win 29-21 over Obama.

MSNBCs Rachel Maddow Wrongly Believes An Electoral Tie Could Create President Boehner

Image: MSNBC screen grab

However, (again according to Maddow) there is no mandate or expectation for the representatives to vote as their states popular vote would indicate. Therefore, she speculates, that it is possible that the 50 states could be split right down the middle. This is where Maddow (incorrectly) thinks Speaker Boehner would become President Boehner (a concept that also appears to give her considerable tsuris… watch the video below).

MSNBCs Rachel Maddow Wrongly Believes An Electoral Tie Could Create President Boehner

Image: MSNBC screen grab

Since Ms. Maddow is confused, we went back to the words of the Founders and also consulted with two different Constitutional scholars (one who spent some time clerking in the Supreme Court). Both gentlemen agree with our position and one rated our analysis of the information as “spot on.”

The 12th Amendment to the U.S. Constitution spells out the correct procedures for resolving an electoral tie:

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.

One state, one vote. Right? Yes, but there is nothing in those instructions that says in case of a tie, the Speaker of the House becomes president.

There is some language about what happens if the House is unable to vote and select a new president by March 4th following the election.

And 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, as in case of the death or other constitutional disability of the President. –]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President.

Based on the Constitution, if the House cannot get its act together and vote for a president, the vice president “shall act as president.” The selection of the vice president who “shall act as president” is in the hands of the Senate. Based on the wording in the 12th Amendment, the two leading VP candidates would go before the Senate (the newly configured Senate) and a VP to act as president would be chosen. So it is possible that Joe Biden could become president.

It is not possible that Romney would be president and Biden be forced upon him as vice president. However, our Constitutional scholar mentioned a previous situation where a president was forced to take a VP not of his choosing.

In the Presidential election of 1836, the election for Vice President was decided in the Senate. Martin Van Buren’s running mate, Richard M. Johnson, fell one vote short of a majority in the Electoral College. Vice Presidential candidates Francis Granger and Johnson had a “run-off” in the Senate under the 12th Amendment, where Johnson was elected 33 votes to 17.

Since modern day votes are cast for president and vice president as a ticket, 1836′s split ticket disaster won’t be repeated.

Got it? Let’s review.

If there is a 269-269 tie, the House will vote for the president, with each state being allowed a single vote.

Should the House be unable to reach a consensus or seat a quorum in order to vote by March 4th following the election, then the vice president will become president.

The vice president will be chosen by the new Senate, from the top two vote-getters in the popular vote and not the electoral totals.

By the way, Ms. Maddow credited ABC News’ Jonathan Karl for speculating about the possibility of the electoral tie, but Mr. Karl’s story never mentions John Boehner, just his theory that a Romney/Biden Executive Branch is a possibility. (It’s not.)

Romney / BIden

Image: ABC News / Getty Images

Rachel, we would like a correction. (We did reach out to her camp but did not receive comment before publication.)

UPDATE: There is a slight amendment to some of the information in this story. While the 12th Amendment made provisions for the steps to be taken in case of an electoral tie, the 20th Amendment changed the date that would trigger a Senate selection of the Vice President to “act as President.” Instead of March 4th, January 20th is the new date.

Here’s the segment from Wednesday night’s show.

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