What If the Presidential Election Is a Tie?

electoral votes
Joint Session of Congress Receives the Electoral College Votes. Chip Somodevilla/Getty Images

People ask lots of questions about the U.S. Constitution, most of them starting with, "What if...?" Here's a good one: "What if... the Electoral College vote is a tie?" What if the 538 electors sit down after the election and vote to a 269 to 269 tie?

After Further Review, It’s Up to Congress

While Article II of the Constitution first spoke to Electoral College ties, the U.S. Congress would proceed according to the 12th Amendment, ratified in 1804, which states that “the House of Representatives shall choose immediately, by ballot, the President” and “the Senate shall choose the Vice-President.”

Note that the following process is also used in the event that no candidate wins 270 or more Electoral College votes.

House Selects the New President

So as directed by the 12th Amendment, the 435 – many of them newly elected -- members of the House of Representatives would find as their first official duty to select the next President of the United States. "Welcome to Congress!"

However, unlike under the Electoral College system, where larger population equals more votes, each of the 50 states in the House gets exactly one vote when selecting the president. Even California, with its 53 Representatives, gets one vote. (The District of Columbia does not get a vote in this process.)

It is up to the group, or "delegation" of representatives from each state to decide how their state will cast its one and only vote. Suddenly, smaller states like Wyoming, Montana, and Vermont, with only one representative wield as much power as California or New York.

The first candidate to win the votes of any 26 states is the new president. The 12th Amendment gives the House until the fourth day of March to select a president.

Senate Selects the New Vice President

At the same time, the House is selecting the new president, the Senate is busy selecting the new vice president.

In the Senate, each of the 100 Senators gets one vote, with a simple majority of 51 Senators required to select the vice president. Unlike it does ​in the case of the House, the 12th Amendment places no time limit on the Senate's selection of a vice president.

But There Could Still be Ties

Of course, with 50 votes in the House (one per state) and 100 votes in the Senate (one per Senator), there could still be tie votes for both president and vice president. But once again, the 12th Amendment comes to our constitutional rescue.

Under the 12th Amendment, as amended by the 20th Amendment, if the House has, for any reason, failed to select a new president by Inauguration Day, January 20, the vice-president elect serves as acting president until the deadlock is resolved in the House. In other words, the House keeps voting until the tie is broken.

Of course, this assumes that the Senate has selected a new vice president. If the senate has failed to break a 50-50 tie for vice president, the Presidential Succession Act of 1947 specifies that the speaker of the House will serve as acting president until tie votes in both the House and Senate have been broken. Unlike in the House, there is no constitutional time limit placed on the Senate in selecting a vice president.

It Has Happened Before

While it is far less likely to happen now with 538 votes in play, Electoral College ties have happened back in the days of fewer states and fewer votes.

In the controversial 1800 presidential election, an Electoral College tie vote occurred between Thomas Jefferson and his running mate Aaron Burr. The tie-breaking vote made Jefferson president, with Burr declared vice president, as the Constitution required at the time. The ensuing conflict between the two men led Congress to enact the 12th Amendment allowing the Electoral College electors to cast separate votes for president and vice president.

In the 1824 election, none of the four candidates won the required majority vote in the Electoral College. The House vote made John Quincy Adams president despite the fact that Andrew Jackson had won the popular vote.

Finally, in 1837, none of the vice presidential candidates won a majority in the Electoral College. The Senate vote made Richard Mentor Johnson vice president over Francis Granger.

Since then, there have been some very close calls.In 1876, Rutherford B. Hayes defeated Samuel Tilden by a single electoral vote – 185 to 184. And in 2000 George W. Bush defeated Al Gore by 271 to 266 electoral votes in an election that ended in the Supreme Court