Presidential Election in the US: The "Odd" Anomaly

The President of the United States is elected every four years, not on the basis of the popular vote but on a majority of votes cast in the Electoral College. Each state is awarded a number of electors equal to its members in the US Senate (2 per state) plus its members in the US House of Representatives which varies according to a state’s population. The Electoral College currently has 538 electors, 435 for the number of congressional members in the House for the 50 states, three members who represent Washington, D.C., and 100 senators.

“A vote for the candidates for President and Vice-President named on the ballot is a vote for the electors. . .” In 48 states, the winner of the popular vote is supposed to get all the Electoral College votes of a state (the winner-take-all system); the two exceptions are Maine and Nebraska which use a slightly different system (the district system) to apportion the Electoral College votes. The Electoral College members meet in their respective state capitals and cast their sealed votes which are then sent to the president of the Senate to be officially counted on January 6 of the year following the election. To win the election, a candidate must receive a majority of the electoral votes, which at present is 270.

It turns out, however, that there are a number of things that may not go smoothly in this process. First of all, the electors in a given state are not obligated to vote for the candidate who won that state. There is no federal law that requires electors to vote according to their respective political parties. These faithless electors can vote against the people’s choice, which is legal in many states and not without precedent (although this hasn’t happened often in the past). Therefore, a candidate who may have secured 270 or more electoral votes after the election may be surprised on January 6 and lose the presidency.

A second and more serious problem is when a candidate does not receive a majority of the electoral votes. If there are two candidates running, there are many ways in which each candidate can get exactly 269 electoral votes (equally splitting the total of 538). Or if there are three candidates for instance, and the third party candidate wins a state’s electoral votes, then it is possible for the candidates of the two major parties to fall short of a majority of 270 votes. In the 2000 election cycle, if Ralph Nader had won just one state like Oregon with its seven electoral votes, neither Bush nor Gore would have secured a majority of 270 electoral votes. It does not matter now because that election was decided by an unprecedented one vote margin in the US Supreme Court.

Since the elections have, for the most part, been conducted within a two-party system, and because there are many ways in which a tie can occur, it comes to me as a surprise that a simple fix has not already been implemented to solve the problem of a tied vote. The population of the US has increased over the last decade and it should be possible to make the total number of members in the Electoral College an ODD number, increasing it by one to 539. Surely there is at least one state which can be allotted one more congressional member in the House of Representatives. Having an ODD number will solve the problem of a tie in a two-party race, but it will not solve the problem of a non-majority when a third candidate is able to win the popular election in one or more states.

I am not an expert in constitutional law, but what happens in the situation of a tie or non-majority of electoral votes is determined by the 12^th Amendment to the US Constitution. Here again, the process can produce very interesting results because of the ODD anomaly. The electors of the Electoral College meet in their respective states and vote by ballot for President and in a separate ballot for Vice-President.

Excerpted from the 12^th Amendment: “The Electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and of the number of votes for each. . .” This can result in a President and Vice-President who are not affiliated with the same party (perhaps we could use that in the present political climate).

“The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.” So here again, the possibility of a tie or non-majority exists. Continuing to quote from the 12^th Amendment, “. . . and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” It may appear at first glance that this process is easy, but the amendment reads, “. . . in choosing the President, the votes shall be taken by States, the representation from each State having one vote. . . . and a majority of all the States shall be necessary to a choice.”

And how many states are there? Last time I checked it was an even number of 50. Although the District of Columbia has three congressional members in the House of Representatives, it is considered a “federal district” and not a state. It will be a matter of interpretation of constitutional law as to whether or not D.C should be allowed to vote in this process. In the event of a tie or non-majority, the House can continue taking votes with the hopes of a favorable outcome. The House has until March 4 to select a President based on a majority of all the States (i.e., 26 votes); otherwise “the Vice-President shall act as President.”

The ODD anomaly does not end here. A similar process is applied to select the Vice-President. “The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President. . . . and a majority of the whole number (of Senators) shall be necessary to a choice.” And there are 100 senators, again an even number.

Fortunately, in recent times, we have not had occasion to apply these safety nets of the election process. But the time may come soon, when the battle for the presidency is so hard fought that we may have to deal with a tie or non-majority in the electoral votes.

Increasing the total number of states to an odd number (say 51) will be difficult. Regardless of the total number of states, since there are exactly two senators per state, the total number of senators will continue to be an even number and I do not see an easy way to resolve this issue. What can happen quickly and what is relatively easier to accomplish is to make the number of congressional members in the House an odd number by increasing it to 439. That will prevent a tie from occurring in a predominantly two-party race but it will not address the pitfalls in the event of a non-majority when there are more than two candidates running for the office of President.

If a tie or non-majority were indeed to occur, the Writers Guild strike could fade into oblivion because the “best political minds” on TV will milk this event into a marathon soap opera, airing even on the weekends. Victor Newman and Nikki – you will no longer be Young and Restless.