It’s late on 6^th November 2024. CNN’s election map guru, John King, has finally filled in the slowest counting counties in the crucial swing states. The result is in…

…And neither Trump nor Harris has an electoral college majority.

Both main party candidates have failed to secure the magic 270 delegates required either because it is a tie at 269 a piece or because a third party candidate has secured a decent result.

So, what happens now?

On 9^th February 1825, the presidential election was decided by the House of Representatives as the voters had not given either candidate a majority in the electoral college. The House voted to give the presidency to John Quincy Adams. Yet his rival, Andrew Jackson, had actually won the most electoral college votes but had fallen short of the majority required because of a fourth candidate, Henry Clay. The fall-out from the election by the House of the less popular Adams – which was described as “a corrupt bargain” since the bottom candidate and House Speaker Clay was made Adam’s Secretary of State – significantly contributed to the emergence of the Democratic Party.

The 1825 result was the first election since the introduction of the 12^th amendment (ratified in 1804). Part of the 12^th outlines what should happen if one of the POTUS candidates doesn’t get the required majority. The House of Representatives decides under the following rule:

“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; 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.”

There’s twist though as, under the 12^th Amendment rules, the House votes based on states representation, with each state’s delegation only having one vote.

The vote is a choice from the top three candidates (one of the reasons why RFK Jr is keeping his name on some ballots).

If the GOP have a majority of the representatives for a particular state then surely they will put their state vote for Trump. They currently have a two state advantage on this basis by my reckoning, but two states are ties. However, any 12^th vote this winter will actually be in the newly-elected congress who will take their seats on 3^rd January 2025.

270towin has a map of the current forecast of these state delegations. It currently still gives the GOP the edge which would mean it is highly likely that Trump would be elected.

But it may not be that straightforward. The Brooking Institution’s Lawfare website undertook a report in 2023 into the possibilities and outcomes of what is technically known as a ‘Contingent Election’. There is a series of uncertainties and many opportunities for parties to behave badly and cause issues during any attempt to get a result from the House. They write that:

“Despite the importance of these issues, there is scarce scholarship on this topic. In our research for a September 2023 report exploring the plausibility and consequences of a contingent election, conversations with constitutional scholars time and again ended in the same place: solemn concern that if no candidate secures a majority of electors in November 2024, what comes next would be chaos and crisis.” (my bolding)

We have been warned.

Will a Contingent Election actually happen this year? Being denied the 270 thanks to a surging third party taking some electoral college votes seems highly unlikely now. RFK Jr was never likely to win any college votes and threw the towel in last week. The No Labels unity campaign amounted to nothing. And there is no maverick, but rich, Ross Perot-style figure on the ballots and it is too late to find one.

But how likely is a tie? Derek Muller, a law professor at the University of Notre Dame told the Miami Herald last week that it is very low, saying: “I typically estimate it at much less than 1%.”

Still. This is the weird and whacky world of 2024. America is hopelessly, yet crucially, evenly divided. Biden is unexpectedly gone. Trump has survived assassination by millimeters and incredibly RFK’s own son is now pledging support to the GOP.

Strange times.

You just know it’s going to happen.

Rotten Borough

NB: The Lawfare website has more detail on how it all should work: https://www.lawfaremedia.org/article/danger-in-plain-sight-the-risk-of-triggering-a-contingent-election-in-2024

https://www.270towin.com/2024-house-election/state-by-state/consensus-2024-house-forecast