Elections

Romney/Biden 2012? TheDC’s short guide to a presidential ‘split decision’

Photo of Will Rahn
Will Rahn
Senior Editor

As such a result would likely extend their time in the sun by several weeks, the political talking class has become fixated on the prospect of a “split decision” on Election Day. This scenario encompasses two different outcomes: One in which a candidate wins the electoral vote while the other wins the popular vote, and one wherein both candidates get 269 of the 538 votes in the Electoral College.

But what comes after a split decision, and how likely is one to actually occur? To make this complicated issue a little easier, The Daily Caller has put together a short guide to what happens if there is no clear winner in next month’s presidential election.

So, what are the chances any of this actually happening?

It depends on whom you talk to. Charlie Cook, of the famed Cook Political Report, says that the chances of a popular vote/electoral vote split decision is “very real” given the closeness of the race in a variety of swing states, while Hot Air’s Ed Morrissey is more inclined to believe this is mostly just a mainstream media fantasy. The New York Times polling guru Nate Silver has used his model to predict a 0.4 percent chance that the race ends in an Electoral College tie, but says Mitt Romney has 5.8 percent chance of winning the popular vote and still losing the election, and President Obama has a 1.7 percent chance to do the same.

One thing that we know for certain is that split decisions have happened before. In 1824, 1876, 1888, 2000, and arguably 1960, the winner of the popular vote was not elected president. In 1800, there was an Electoral College tie.

If there is an Electoral College tie, who gets to pick the president?

Every one of those historical scenarios worked out a little differently. But, in the event no candidate gets a majority of the electoral votes, the 12th Amendment stipulates the election is handed over to the House of Representatives. This happened last when Andrew Jackson won the popular vote in 1824 but, since there were so many candidates running, he did not secure a majority of electors. John Quincy Adams then became president with the help of House Speaker Henry Clay, who was later appointed by Adams as Secretary of State.

If Romney and Obama were to each get 269 votes in the Electoral College, the House would handle the selection of the president, while the Senate would choose the Vice President. The House would give each state delegation one vote, meaning that if a state has more Republican representatives than Democratic ones, then Romney would likely win that state. This is good news for Romney, as the GOP is still expected to control a majority of state delegations after Election Day.

But, if we expect the Senate to remain under Democratic control, this could also be good news for Joe Biden. The Senate picks the vice president in an electoral tie, and could be persuaded to put in their old friend Joe even if Romney winds up in the White House. In fact, if there is a 50-50 tie on the Senate floor over the issue, Biden, in his role as President of the Senate, could be the man who casts the deciding vote in favor of keeping himself in the vice presidency. Whether the constitution allows for Biden to vote to make himself vice president is not entirely clear, but however you slice it, a Romney-Biden administration running the country for the next four years is possible, however unlikely.

And if one candidate wins the popular vote but loses the Electoral College vote, then what happens?

Probably the most likely scenario in this case is something of a repeat of 2000, when the legal teams of Vice President Al Gore and eventual winner George W. Bush argued for weeks about the minutiae of Florida voting laws.

In that case the dispute was kept to just one state. But if several states come down for one candidate or another by a razor thin margin, you could have multiple court cases across varied jurisdictions in which high-priced attorneys insist that the idiot who scribbled “Lizard People” on his ballot really meant to vote for Romney or Obama.

Given the state of the nation’s economy, not to mention the looming danger of the “fiscal cliff”, it would be hard to imagine that this protracted outcome would be helpful for the country. So let’s all just hope that, come the morning of November 8th, we at least know who our next president and vice president are.

Follow Will on Twitter