The catastrophic scenario of an Electoral College tie looms

The 2024 presidential race will likely come down again to just a handful of states and a close Electoral College contest.

The U.S. Constitution requires that a candidate win a majority of electoral votes to win the election outright. With the total number of electoral votes currently set at 538, a candidate must tally at least 270 to become president. 

An even number of total electoral votes presents the country with the risk of a potential tie of 269-269 in the Electoral College, a risk made more possible in a close contest.   

The U.S. nearly witnessed a tie four years ago. This would have happened had Donald Trump won in Wisconsin, Arizona and either Michigan or Georgia. Alternatively, Trump wins in Pennsylvania, Nebraska’s 2nd Congressional District, and either Michigan or Georgia would have also resulted in an Electoral College deadlock. 

Indeed, less than 43,000 votes separated Trump from Joe Biden in Georgia, Wisconsin and Arizona.  

The 2024 election will likely be determined by the “blue wall” states of Wisconsin, Michigan and Pennsylvania and the sunbelt swing states of Arizona, Nevada, Georgia and North Carolina. Polling shows these battleground states to be the closest and both campaigns are investing their resources most heavily — and almost exclusively — in these seven states.  

The election is also being waged in the 2nd Congressional District of Nebraska, one of only two states (along with Maine) that allocate their electoral votes using the district method, rather than using a winner-take-all vote. Although Joe Biden carried the 2nd District in 2020, it is currently represented by Don Bacon, a Republican, and rated as “even” in Cook Partisan Voter Index. 

Holding the results of the 2020 electoral map constant, if Kamala Harris wins the blue wall states, and Donald Trump wins the sunbelt swing states and Nebraska’s 2nd District, the election would result in a tie. 

Another scenario yielding a tie would involve Trump winning in Michigan, Pennsylvania and North Carolina, and Harris winning Arizona, Nevada, Georgia, Wisconsin and Nebraska’s 2nd District. Given the perceived closeness of the 2024 election, these outcomes have a much greater than zero chance of happening. 

If a tie were to happen in November, real humans holding the office of presidential elector will gather in their state capitols on Dec. 17 to translate the popular vote into electoral votes. While most states have laws seeking to bind electors to the winner of the popular vote in their state, many do not, thus making them suspectable to high-pressure lobbying campaigns in the weeks following the election. 

In the event of a tie, even one faithless elector could ostensibly swing the election. 

Despite the Supreme Court’s ruling in 2020 in Chiafalo v. Washington that states can prohibit faithless electors, 13 states, composing 106 electoral votes, have no laws prohibiting faithless votes. These include the swing states of Pennsylvania and Georgia. 

Another 15 states prohibit faithless votes but do not identify a means to cancel those votes. If faithless votes occur, they will certainly be challenged during Congress’s certification of electoral votes on Jan. 6, 2025. 

Provided an electoral vote tie remains in place after the Electoral College vote, it would be up to the newly elected 119th Congress to determine the election winners with the House of Representatives deciding on the president and the Senate tasked with picking the vice president. 

In the Senate, each senator would have one vote, and voting would continue until one candidate commands a majority. If Democrats retain control of the Senate following the election, they will certainly select Tim Walz to become the vice president. If Republicans gain control, they will undoubtedly select JD Vance. 

The Constitution is silent about whether Kamala Harris, the sitting vice president, could cast a tie-breaking vote in the Senate if the body was deadlocked in such a unique circumstance.  

The House utilizes a wholly different procedure. Instead of each individual representative casting a vote, every state House delegation would have to decide how that particular state would cast its vote. 

The Republicans currently have a 28-22 edge in control over U.S. House delegations. Unless Democrats made significant gains in control over House delegations in the election, the House of Representatives would likely choose Donald Trump as president.  

For those who are critical of the Electoral College, the contingency procedure reveals significant problems. First, it provides great power to individual states, regardless of their population. In the House, a vote from California, with a population of more than 40 million people, would be equal to a vote from Wyoming, with a population of less than 600,000. 

The contingency procedure also reveals how Americans could end up with a president of one party and a vice president of another. If Republicans controlled enough delegations in the House and Democrats hold on to the Senate, the result would likely be a Trump-Walz administration. 

The last time an administration had two presidential competitors from different parties end up in the same administration was 1800 with President John Adams, the Federalist, and Vice President Thomas Jefferson, the Democratic-Republican, serving together for four very tumultuous years.  

The 2020 election and the Jan. 6 Capitol riot demonstrated that campaigns may go to great lengths to test the bounds of the Constitution, along with those charged to enforce it. Although an Electoral College tie is unlikely, it is possible given the current state of the race. 

The chicanery that would ensue as a result would usher in yet another constitutional crisis that would test the American republic in unprecedented and potentially dangerous ways.  

Robert Alexander, Ph.D., is a professor of political science at Bowling Green State University. He is the author of “Representation and the Electoral College,” published by Oxford University Press. David B. Cohen, Ph.D., is  a professor of political science and director of the applied politics program at The University of Akron.