As a number of political analysts have pointed out, there is a small but real chance of a 269-269 tie vote in the electoral college. If that’s the count when the electors cast their ballots on December 17, then the newly-elected House of Representatives will pick the winner in January. Under the 12th Amendment, each state delegation gets one vote. Republicans currently have a majority of representatives from 33 states, and this election probably won't change that number very much. So a tie vote would mean a Romney victory. (The Senate elects the vice president, however, so if Democrats keep their majority there, Romney’s vice president would be Joe Biden.)
But a tie on election night doesn’t necessarily mean a tie on December 17. Contemplating the prospect that a deadlocked electoral college would send the decision to a GOP House, supporters of President Obama might try to get some GOP electors to change their votes.
Such a move would be lawful. Twenty-one states do not bind their electors to vote for the candidates to whom they are pledged. Twenty-nine states and the District of Columbia do have such requirements, but there is serious doubt that the courts would uphold them.
There would be a precedent for an organized effort to flip electors. When it became apparent that Al Gore won a popular-vote plurality in the 2000 election, a pair of students at Claremont McKenna College started a Website to persuade Republican electors to support Gore. (We mention this attempt in our textbook.) Although they attracted a lot of publicity, they got little support from Democratic political professionals, who were focusing on the vote count in Florida.
Things would be different this time, in part because Democrats are still seething about the 2000 result. If the impetus for a vote-switching effort didn’t come directly from the Obama campaign or the Democratic National Committee, it would surely come from outside-spending groups or the progressive side of the Twitterverse.
In most states, people get to be electors because of long service to their party, so it would be hard to switch many of them. But in case of a tie, it would only take a single defection to decide the election. Out of 269 mostly-obscure people, might not one feel a temptation to earn a line in the history books?
If a Republican elector or two seemed to be wavering, the Romney campaign would probably try to flip Democratic electors the other way. One would guess, then, that both sides have contingency plans for an electoral-college whip operation, complete with up-to-date contact information for every elector.
I don’t know if this scenario would be good for the country, but it would be fascinating to watch.
