All the polls say this presidential election will be very close. According to one political writer, it will come down to about a million people who live in the battleground states whose highest education is a high school diploma. What if there is no clear Electoral College winner? What if neither candidate gets the necessary 270 electoral votes to win the presidency? Understanding what happens next according to the Constitution may be important.
The last time there was a question of the winner was in the 2000 presidential race between George W. Bush and Al Gore. The issue then was whether the ballots in Florida were correctly counted. You may remember the “hanging, dimpled or pregnant chads.” This question eventually ended with a decision of the U.S. Supreme Court awarding Florida’s 25 electoral votes to George W. Bush. Although
Gore had won the popular vote, Bush had won the all-important electoral vote by a margin of 271 to Gore’s 266.
What if neither Obama nor Romney gets the required 270 electoral votes to win? That problem is technically possible in this election. According to the Constitution:
“If no candidate receives a majority of Electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most Electoral votes. Each state delegation has one vote” (Office of the Federal Register, from the 12th Amendment).
The last time this occurred was in the presidential election of 1876, 11 years after the Civil War. White southern Democrats had terrorized and intimidated Republican voters through violence to the point where 250,000 citizens had been prevented from voting. Southern Democrats won the election and regained control of all but three of the southern states: Louisiana, Florida and South Carolina. Republicans contested the electoral vote tallies of those three states. This put the winner of the election in dispute.
Samuel Tilden, a Democrat, had won the popular vote in this election, but he did not have enough electoral votes. Rutherford Hayes was his Republican opponent. Since no candidate had won enough electoral votes to gain the presidency, the decision was thrown into the House of Representatives.
The House formed a committee of eight Republicans and seven Democrats. The vote went to Hayes, but knowing the Democrats would be furious, a political deal was reached called the Compromise of 1877.
In accordance with this compromise, the Republicans removed federal occupying troops from the South, leaving the fate of the former slaves in the hands of white southerners. As a result of this political deal, blacks were legally segregated and most lost their voting rights until the mid-1960s.
White southerners as a body abandoned the Democratic Party after segregation ended and black voting rights were restored in the 1960s. Since that time a majority of Southern whites have voted Republican.
Could there be a case where neither candidate won the election again? It’s statistically possible, but very remote. It can be seen though, that the era in which we live is not as divided, nor as politically ruthless, as it was 12 years after the Civil War. For that we can be thankful.