It's the morning after the Nov. 6 election, and Americans who went to bed dreaming of a new start in Washington are waking up to a Nov. 7 nightmare. Neither Barack Obama nor Mitt Romney has won the 270 Electoral College votes required by the Constitution to claim the presidency: it's a 269-269 tie. Lawyers for both candidates strut across TV screens chased by reporters while experts on the Constitution struggle to explain what happens next. The country braces for a repeat of the disputed 2000 election in Florida--this time on a national scale.
The math works like this: Romney wins the battleground states of Florida, Virginia, Iowa, Nevada and Colorado, while Obama wins Ohio, Wisconsin, New Hampshire and New Mexico. That would leave each man with the nominal support of exactly half of the 538 people who volunteered to perform the normally ceremonial duty of electing the President in the weeks after the popular vote. The chances of this or a handful of other, less likely tie scenarios are remote but real: statistician Nate Silver puts the odds at 0.7%. The race is close and fluid enough that both sides are consulting veterans of the Florida fight and boning up on state election laws.
The good news is that the Constitution provides a detailed plan in case neither candidate gets to 270; the bad news is it's a recipe for chaos. The Electoral College, a quaint relic of the 18th century, would become a political hotbed, as every elector would represent the potential difference between victory and defeat. Only 26 states have laws requiring their electors to vote for the person they were chosen to support. It's not hard to imagine one of the 256 unbound ones being tempted by either side to write themselves into history as the person who chose a President. A faithless elector might, for instance, abandon his or her candidate if the other one won the popular vote. The Associated Press had already found five potential rogue electors by early October.
The electors cast their votes Dec. 17, and if neither candidate has 270, the 12th Amendment requires the newly elected House of Representatives to meet on Jan. 6 to choose the next President using a 225-year-old formula. Each state gets one vote, and the state's delegation votes to determine its pick. Romney has the edge in that hypothetical contest, but it's a close call. If the House can't muster a majority--at least 26 states in favor of a candidate--it has to stay in session until it can settle on a winner.
It would be great if there were a good reason for this mashup of an electoral system, but there isn't. The framers designed it during heated debates at the Constitutional Convention from July to September 1787. Some scholars believe it emerged because small states feared a stream of Presidents from then dominant Virginia and Massachusetts. Others say Southern states wanted to offset the power of the antislavery North. It's even less clear why the House became the final arbiter.