The electoral college system by which we in the U.S. elect our president is famously convoluted, but one aspect is largely unknown even to those who otherwise understand it: what happens if there is no electoral college majority? This has happened twice: in 1800 there was a dead tie between Aaron Burr and Thomas Jefferson, and in 1824 there was a 4-way race in which the top candidate received only 40% of the electoral vote.
So what happens then? Under the 12th Amendment, the House of Representatives picks the new president, choosing from the top three candidates (based on electoral votes). But wait! It gets better! The House votes not as individual representatives–the way they vote on every other matter–but rather as state delegations. That’s right: the 53 representatives from California would collectively cast a single vote, as would the lone representative from Wyoming. Although residents of Washington DC get to vote in presidential elections, their solitary non-voting delegate to the House would not receive a vote here.
While the electors meet and vote (in their respective states) on the first Monday after the second Wednesday in December (I swear, I’m not making this up), the operative date for this purpose is January 6th, when the House and Senate meet in joint session to conduct the official tally of electoral votes. It is at this point that, were there no majority, the House would select the next president. The precise timing is critically important, since under the 20th Amendment, old Congressional terms end and new ones begin on January 3rd, at noon. Thus it is the newly elected House that gets to select the President.
What would it take for this to happen? An electoral college tie is theoretically possible in a close two-way race, but extremely unlikely. By contrast, any remotely viable third-party candidacy could easily send an election to the House. Assuming a close race between the Democrat and Republican, a third party challenger who was able to win even just a few states could make it quite difficult for anyone to achieve an electoral majority.
What does the House look like from this perspective? In a few quick searches, I couldn’t find any tallies of House membership broken out in the way that would matter if the House were to pick the President. This is not surprising, since the House doesn’t function this way for any other purpose that I am aware of. Plus, if this were to happen, the relevant House wouldn’t even be the current House. Nonetheless, I thought it would be an interesting exercise to see what the current House looks like through this lens (I’ve thrown in the Senate for the sake of comparison):
| House, by state delegation majority | House, by representative | Senate, by Senator | |
| Republican | 33 (66%) | 246 (57%) | 54 (54%) |
| Democratic | 14 (28%) | 188 (43%) | 44 (44%) |
| Tied / Vacant / Ind | 3 (6%) | 1 (0%) | 2 (2%) |
To put it another way, under regular voting rules, the current ratio of Republican votes to Democratic votes in the House is about 1.3 to 1. Under the rules by which the House would select a president, and assuming party-line voting (with evenly-divided delegations deadlocked and unable to vote), this changes to an astounding 2.4 to 1!
In a later post, I may go into the underlying data and discuss how I calculated these numbers using an API from www.govtrack.us and a bit of Python. [Update: That post is now up.]
[Update 2: To think about the implications of the House voting in this manner today versus in 1788 or 1804, it is helpful to look at how the relative sizes of state delegations have changed over time. I created a data visualization that shows this.]