Credit: Phil Roeder and Office of the President of the United States

The US presidential election is less than five months away and the campaign is heating up, particularly with the ongoing coronavirus pandemic and Black Lives Matter protests across the country.

The election will see former Democratic Vice President and current Republican President Donald Trump battle for the 538 Electoral College votes across 50 US states and the District of Columbia.

However, with the potential for the race to be closely fought, what would happen if both presidential candidates tie on 269 Electoral College votes each, falling short of the 270 needed to win.

Picking the President

In this situation, known as a contingent election, the 12th Amendment states that should no presidential candidate receive a majority in the Electoral College, the House of Representatives will vote on who to elect president from the top performing candidates.

However, rather than each individual representative getting a vote, each state receives one vote towards electing the president. As a result, states’ representatives would have to agree on which candidate to support.

In some parts of the country, this could result in a state backing a different candidate to the one that citizens voted for. This is because some swing states states, such as Texas and Wisconsin, could vote Democrat at the presidential election but elect more Republicans to the House of Representatives.

To make things more confusing, some states have an equal number of Republican and Democrat representatives in the House, meaning that their state vote for president would be nullified, unless either side could agree on a candidate to support. This would be the situation in Pennsylvania, where there are currently nine Democrats and nine Republicans representing the state.

Although the Democrats are expected to hold a majority in the House of Representatives in November’s election, the Republicans are likely to a majority of delegates in 26 states. This would mean President Trump would be re-elected. However, it would only take three representatives from Pennsylvania, Florida and Montana to flip to the Democrats for this to change.

Should there be a tie, with 25 states voting for each candidate, the Vice President would serve as Acting President until a decision is made. However, the Vice President is also independently selected.

Selecting the Vice President

Under the 12th Amendment, the Vice President is voted for by the Senate. Each of the 100 senators gets their own vote to select the Vice President. Therefore, whichever party holds the balance of power in the Senate after the election will be able to place their VP nominee into office.

In the event of a 50-50 split, the current Vice President would have the power to break the tie, as they do in normal circumstances. For the 2020 election, this would mean Mike Pence would cast the deciding vote to ensure he keeps his job.

If for whatever reason both houses of Congress were unable to make a decision, Speaker of the House Nancy Pelosi would serve as Acting President until a decision is made – as laid out in the order of succession. This could potentially arise if there was a legal challenge on Pence’s authority to break the tie in the Senate.

A split ticket

Given how close the situation could be in this situation in both houses of Congress, it is not unlikely that they could pick candidates from different parties for president and vice president. Should the Democrats gain control of the Senate but not take a commanding number of delegates in the House of Representatives, we could end up with Trump as President with a Democratic Vice President. Meanwhile, if the Republicans manage to maintain the balance of power in the Senate and the Democrats win enough seats in the House of Representatives to win the presidency, Joe Biden could have Mike Pence serving as his Vice President in the White House.

How likely is a Electoral College tie?

Although a contingent election is extremely rare, they have occurred three times in American history – in 1800 and 1824 for selecting the President and 1836 for the Vice President (when the post was voted on separately from the presidency). However, as the 1824 election involved three candidates receiving Electoral College votes but no majority, there has not been a situation where two candidates have tied.

However, there are a variety of plausible scenarios in which a tie could occur at this election. Here are just five possible outcomes where the race for president would tie

Scenario 1: Biden flips Pennsylvania, Michigan and Maine’s 2nd congressional district but not Wisconsin
Scenario 2: Biden flips Wisconsin, Michigan and Arizona but not Pennsylvania
Scenario 3: Biden flips Arizona, Wisconsin, Maine’s second congressional district and North Carolina, but not Michigan and Pennsylvania
Scenario 4: Biden flips Arizona, Maine’s second congressional district and Florida but Trump takes New Hampshire
Scenario 5: Biden flips Florida, Georgia, Maine’s second congressional district and Arizona but Trump gains New Hampshire and Nevada

Whilst the chance of a tie is incredibly rare, close races such as the 2000 presidential election refuse to rule out such an unprecedented outcome.