by Joe Lenski, Edison Executive VP
Entering Election Night in 2000, the American voting public and the news media had grown accustomed to the typical election night ritual of quickly learning the results of the Presidential election. The 1976 election won by Jimmy Carter over Gerald Ford was the last time that the nation had to wait until after the polls on the West Coast had closed at 11PM ET in order to know who was the winner of the election. Ronald Reagan (twice – 1980 & 1984), George H.W. Bush (1988), and Bill Clinton (twice – 1992 & 1996) won elections by comfortable margins and were able to declare victory before most of the country went to bed that night.
Election Night 2000 was different. The television networks and their viewers endured a long Election Night, first believing at 2:15 AM that George W. Bush had won, and then soon realizing that the race in Florida was actually so close that the matter was not yet settled. It would be 37 days before a ruling from the U.S. Supreme Court would finally determine the outcome.
Of course, there is a small chance that this same nightmare scenario could repeat in 2004. In fact, the situations that could lead to a 2000-style electoral gridlock are numerous enough that I have written a series of articles to describe in detail many of these possibilities, any one of which may again leave the outcome of the election undetermined on Election Night.
My first article deals with two potential “nightmare scenarios.” The first is the Constitutional anomaly that has not occurred since the Election of 1800 – an Electoral Vote Tie. The second deals with the Referendum on the ballot in Colorado, which could change how the electoral votes in Colorado are allocated and potentially determine the next President of the United States.
Scenario #1 – Electoral Vote Tie
Situation: The final Electoral Vote tally is 269 for Bush and 269 for Kerry.
Likelihood: Mathematically the chances are about 1 in 80, but the possible combinations of states that would create a 269-269 Electoral Vote tie are numerous. Simply by flipping New Hampshire and West Virginia from Bush to Kerry and having Kerry carry all of the states that Gore carried in 2000 would create an Electoral Vote tie.
But that is just one possible way of getting to a 269-269 tie. I have examined all of the possible ways that 13 current toss-up states (Arizona, Florida, Iowa, Minnesota, Missouri, Nevada, New Hampshire, Ohio, Oregon, Pennsylvania, West Virginia and Wisconsin) could vote in a Bush-Kerry race, and have discovered 146 different plausible combinations that would lead to a 269-269 tie. View the 146 maps showing these Electoral Vote ties.
Outcome: According to the U.S. Constitution if the electoral vote for President ends up in a tie (or no candidate receives a majority of the electoral vote – 270 out of 538) the election is to be settled by the Congress on January 6, 2005. That’s right, it could take 65 days to determine the winner of a Presidential election that ends in an Electoral Vote tie. However, there are several steps that have to happen before the decision gets to the Congress.
First, the members of the Electoral College have to meet and physically cast their votes. The members of the Electoral College will meet in their respective state capitals on December 13, 2004 (the first Monday after the second Wednesday in December). That will give the two campaigns 41 days after Election Day on November 2nd to try to convince one of the 538 individuals who are electors to switch sides. Also it will give the campaigns 41 days to challenge the credentials of each elector – a little-known Constitutional provision states that no member of the Electoral College can be a member of Congress or an employee of the Federal Government. Any state party who forgets about this provision could see their elector disqualified and replaced.
There can also be some chicanery by the electors themselves to manipulate the subsequent voting by the House of Representatives for President. The Constitution states that if no person receives a majority, the House of Representatives can choose from among the top three candidates receiving electoral votes. For example a single Democratic elector could vote for a Republican other than George Bush (say John McCain for example) in hopes of splitting the Republican vote in the House. Or there could be a campaign to nominate a compromise candidate such as Colin Powell and an elector or two could vote for Powell in order to give the House the option of selecting him as President in place of either Bush or Kerry.
Once the electors have cast their votes, they will be counted at a joint session of Congress on Thursday, January 6, 2005. The members of Congress have the opportunity to challenge the validity of any electoral votes. If at least one member of the House and at least one Senator object to an electoral vote, the two Houses shall then separately meet and decide about the objection. In 2001, members of the Congressional Black Caucus from the House tried to challenge the electoral votes from many of the states voting for George Bush especially those from Florida. However, they could not find a single Democratic Senator to join them. After the extreme partisanship of the last four years it would probably be a lot easier to find a Senator to join in objecting to any controversial electoral votes.
Once these challenges are dealt with and the votes have been counted, if no one receives a majority of the electoral votes the House will then begin voting for President and the Senate will begin voting for Vice President. Note that this vote will take place on January 6th three days after the new Congress has been sworn in on January 3rd.
The Senate vote is a straightforward vote – each Senator gets one vote and must choose between the top two finishers in the Electoral College. Whoever receives 51 votes would be elected Vice President. There is a question of what would happen if the Senate vote were a 50-50 tie. Normally the Vice President casts the deciding vote whenever there is a tie in the Senate. However, it would seem to be debatable whether Vice President Dick Cheney would be allowed to cast the deciding vote to make himself Vice President for another term. This outcome would probably end up being litigated in front of the U.S. Supreme Court.
Another note – John Edwards would not have a chance to vote for himself for Vice President since his Senate term ends on January 3rd. However, John Kerry would still be a Senator and he could cast the deciding vote to make Edwards Vice President. We could possibly see the paradoxical situation where John Kerry casts the deciding vote to make Edwards Vice President while the House votes to re-elect George Bush President resulting in the ultimate form of divided government.
The House vote for President is a lot more complicated. It is not a simple one-representative/one-vote situation. Instead, each state delegation receives one vote and the winner needs to receive the most votes from 26 state delegations. If a state delegation is tied that state casts no vote. The Republicans currently have a majority of the representatives in 30 states. However, a strategically placed switch of a handful of seats in November’s election could keep the Republicans from controlling the 26 states delegations necessary to re-elect George Bush in the event of an Electoral Vote tie. And if neither candidate can get 26 votes the House will keep voting and voting until someone does.
If the House cannot select someone by January 20th then the Vice President selected by the Senate will become acting President until the House can make a selection. Thus, if the Democrats in the Senate have succeeded in selecting John Edwards as Vice President it would be in their interest to continue a deadlock in the House for as long as possible so that Edwards could become acting President. Thus, we could possibly reach a situation where 79 days after Election Day we would still not have elected a President. Now that would keep the cable news networks busy.
Scenario #2 – The Proportional Electoral Vote Referendum in Colorado
Situation: Democrats have placed on the November 2nd ballot in Colorado a referendum that would change the method of allocating that state’s electoral votes. Currently like every other state, except Maine and Nebraska, Colorado awards all of its electors to the winner of the popular vote in the state. If this referendum passes Colorado’s nine electoral votes would be awarded proportionally starting with the current election. If the electoral votes in Colorado had been awarded proportionally in 2000, Gore would have received three of Colorado’s eight electoral votes, and he would have won the electoral vote nationally 270 to 268. [Note that due to the new Census, Colorado has an additional electoral vote in 2004.]
Likelihood: First, the national electoral vote would need to be close enough for this procedure to make a difference. If there is a net swing of between 5 and 9 electoral votes from Bush to Kerry in the other 49 states then the outcome of the vote on this referendum would determine who is elected President.
Outcome: Actually there are all sorts of outcomes. For example, if the electoral vote in the other states gives Kerry a lead of 267 to 262 over Bush, but Bush is leading in Colorado, the outcome of the referendum would determine who wins the Presidency. If the referendum passes Bush would get 5 electoral votes from Colorado and Kerry would get the other 4 electoral votes putting him over the top 271 to 267. However, if the referendum were defeated Bush would get all of Colorado’s nine electoral votes and win nationally 271 to 267.
If the referendum passes and makes a difference nationally we can expect the legality of the referendum to be challenged by the loser.
But there is another complication. Say the result of the vote on the referendum is too close to call and heads to a recount. If these 4 electoral votes are critical we could expect another “Florida 2000” but this time the recount shenanigans would be over the vote in the referendum, not the vote for President. That’s right – a re-count in a state referendum in Colorado could determine the next President of the United States.
And if you really want a nightmare situation, you can imagine a situation where both the referendum and the presidential vote are too close to call and both results head for a recount. You could have a situation where each side may need to hire two sets of lawyers, one to argue each side of the referendum depending upon the outcome of the recount for President.
Take this possible situation. Bush leads in the electoral vote 265 to 264 and there are recounts in both the presidential and referendum votes in Colorado. There are four different possible outcomes:
It would be ironic for the Democrats if the referendum that they are promoting turns out to deny them the Presidency.
These are just two of the many pitfalls that might await the nation this November. In upcoming articles I will examine other possible outcomes that could make the results of this election even more complicated than the results of the 2000 Election.