How Congress would decide the presidency if there's an Electoral College tie

A tie in the Electoral College in November is a very real possibility — and it could even end with a new President Trump and a new Vice President Harris sharing power.

The odds are unprecedented in modern history, but the setup of the country’s electoral system and the fact that a nail-biter election is likely coming means it's not impossible. It would require what experts referred to as a “perfect storm” of an exactly right set of states to split between Trump and President Biden.

“It would lead to a pretty significant, potentially — I won’t call it disastrous — but disruptive election process if it does happen,” said Derek Muller, a law professor at the University of Notre Dame. “A low-likelihood scenario, but certainly a problematic one.”

In the event that neither Trump nor Biden receives the necessary 270 electoral votes, the election would move to the House of Representatives, which elects the president by giving each state delegation one vote.

A majority of each state’s House delegation would decide who receives the state’s vote. So if a majority of a state’s House members are Republican, Trump would likely receive that vote, and if a majority of a state’s House members are Democratic, Biden would likely receive that vote.

If a state’s delegation is evenly divided between the parties and the state’s representatives are deadlocked, the state would not vote.

The Senate would elect the vice president, with each senator casting one vote until one candidate reaches 51 votes. So if a majority of the Senate is Democratic, Harris — who’s almost certain to be the official vice presidential nominee once again — would likely win, and if Republicans flip the Senate, whoever Trump chooses as his running mate would win.

Whichever candidate receives at least 26 votes in the House would win, but if 26 isn’t reached by Inauguration Day in January, the vice president-elect would serve as acting president until the House resolves the situation, according to the National Archives.

The current Republican-controlled House and Democratic-controlled Senate are indicators of what could happen if voting goes to Congress. But, importantly, the incoming House and Senate would be responsible for picking the president and vice president, respectively — not the outgoing lawmakers. 

So, the parties could end up swapping positions as they seek to break a potential tie after November.

“If a tie were to happen, what’s important to remember is that it would be broken not by the current House but by the ‘newly elected’ House, and not by simple majority of members but by ‘state delegations’ within the House,” said Christopher Miller, a political science professor at the University of Richmond. “This might come as a surprise to many voters, and quite possibly a source of frustration. It’s one more reason voters should pay close attention to down-ticket races this fall.”

The prospect of a split administration six months out from Election Day isn’t far off considering the two candidates have been tied in national polls, according to The Hill/Decision Desk HQ’s average of polls. 

A Quinnipiac University poll from late April found the two tied, a Morning Consult poll from mid-April also found a tie and another mid-April poll from Yahoo News/YouGov had the same result.

Only one potentially realistic electoral scenario exists where Biden and Trump would both land at 269 electoral votes.

The main swing states likely to decide the election are Arizona, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin. If Trump wins Arizona, Georgia, Nevada and North Carolina, while Biden takes Michigan, Pennsylvania and Wisconsin, both would be just short of reaching the threshold of 270.

Crucially, Maine and Nebraska distribute some of their electoral votes by the winner of each of their congressional districts instead of through a winner-take-all system as the other states do. Each state’s 2nd Congressional District is a battleground district that has flipped back and forth in recent years.

If Trump wins both of those districts along with the four swing states, the race would be tied at 269 each.

Bruce Mehlman, a founder at Mehlman Consulting and a former official under President George W. Bush, noted that a 269-269 tie could happen and argued that the situation comes with a clear resolution.

“While somewhat remote, an Electoral College tie is possible and in many ways easier to resolve than a situation with hanging chads and a butterfly ballot, competing slates of electors or where Election Day violence may or may not have impacted the final tally,” Mehlman said.

Two past elections in U.S. history have resulted in no candidate receiving a majority of electoral votes and the House deciding the contest. In 1800, Thomas Jefferson and Aaron Burr tied at 73 electoral votes each in a four-way race, and the House needed 36 ballots to eventually elect Jefferson the president.

In 1824, Andrew Jackson achieved a plurality of the vote in another four-way race but fell short of a majority. But the second-place finisher in the Electoral College and popular vote, John Quincy Adams, was able to gain enough support in the House to win the presidency.

The Trump campaign didn’t respond to a request for comment on the scenario.

The Biden campaign, meanwhile, has largely brushed off polls months out from Election Day.

“We don’t see polls that are six or seven months out, head-to-head numbers, as any more predictive than a weather report,” Dan Kanninen, battleground states director for the Biden campaign, told reporters this week.

A former Biden aide told The Hill that the president’s team “would never outwardly convey a sense of panic about something so specific and theoretical.”

“I'm skeptical that this particular outcome is being discussed in isolation at this time but it's probably included on a menu of scenarios for a team of attorneys being considered,” the former aide added.

But some warned about what a split Republican-Democratic presidency could mean, especially with Trump and Harris together.

“A Trump-Harris presidency? They would both need full-time food tasters,” said Democratic strategist Jim Kessler, executive vice president for policy at Third Way. “In the unlikely event this occurs, Trump would make sure Harris would have the same influence that Mike Pence had when he was vice president: zero.”

And experts warned that such a scenario in which Congress decides the presidency could cause an uproar in the public and further declining faith in the legitimacy of elections, even though this process has been constitutionally established for two centuries.

Trish Crouse, an adjunct professor of political science at the University of New Haven, said an “outcry” could happen across the country because of a lack of understanding of how the Electoral College functions and many do not follow elections closely until the outcome.

“There would be a sense of distrust of the government, thinking that something underhanded is going on, when in reality, this is how the system works,” she said.