President Trump and Vice President Walz: this bizarre election outcome is far from impossible

What if the Electoral College is tied? America would face a constitutional dilemma it hadn’t seen for 200 years

As the world obsesses over the US presidential election, attention is turning to the Electoral College, which will determine its outcome. America’s Founding Fathers, who favoured a limited federal republic over unfettered democracy, feared that one populous state – or group of states – could, by sheer weight of numbers, impose its will over the others. Their solution, enshrined in the Constitution, created a weighted electoral system in which each state casts votes for president and vice president equal in number to that state’s total number of members of Congress.
In practice, each state is represented by two senators in the upper house. Representation in the House of Representatives is determined by state population size, with the figure adjusted to account for the periodic census.
Presidential and vice-presidential candidates who win a majority or plurality of a state’s popular vote with rare exception receive all of that state’s electoral votes. It is mathematically possible for a presidential candidate to win the national popular vote but lose in the electoral college. This has happened five times – in 1824, 1876, 1888, 2000, and 2016. The Republic survived, though each case dismayed critics, who cast doubt on the system’s democratic credentials.
The system can also produce a “contingent election”, in which Congress decides the election if no candidate emerges with an electoral college majority. The relevant procedures allocate one bloc vote to each of the 50 state delegations in the House of Representatives to elect the president from among the top three popular vote winners. They also provide for a separate Senate vote to choose the vice president from the top two popular vote winners by a simple majority.
Contingent elections have determined the presidency twice. In 1800, Thomas Jefferson and Aaron Burr were tied in the electoral college. The House of Representatives chose Jefferson. Under the Constitution as it then stood, Burr – the runner up – became vice president without a Senate vote, which was later introduced by constitutional amendment.
In 1824, the electoral vote was split among four candidates, none of whom won a majority. Andrew Jackson won a plurality of both the popular and electoral vote, but the House instead elected John Quincy Adams, who duly took office.
Could a contingent election happen again? Simple maths alone could cause one. With a total of 538 electoral votes at stake, Donald Trump and Kamala Harris could each conceivably win 269, an exact tie. Multiple combinations could yield that result, but it could, for example, happen in the plausible scenario that Harris wins all the states she is currently projected to win and three of the “swing states” that she may win – Wisconsin, Michigan, and Pennsylvania.
The constitutional outcome would then depend on the composition of the House and Senate when they return in January (all House seats and one-third of Senate seats are up for election, along with the presidency). If the Republicans maintain their current majority of 26 of the 50 state delegations in the House, they will likely elect Donald Trump, even if they lose their slim overall majority of House seats. If the Democrats win a majority of state delegations – even if they fail to win a majority of House seats – they will likely elect Kamala Harris.
Similarly, if the Democrats retain their current Senate majority, Tim Walz will likely be elected Vice President. If the Republicans win a Senate majority, however, JD Vance will likely win.
Under this bifurcated process, it is theoretically possible that the executive branch offices could be held by candidates of opposite parties, in a bizarre Trump-Walz or Harris-Vance administration. This would be a first, but it is far from impossible: while the Senate is projected to gain a Republican majority, the House could go either way. It is also theoretically possible that the House could pass over both Trump and Harris and elect independent candidate Robert F Kennedy Jr to the presidency, for he remains on the ballot in most states and would be constitutionally eligible as the projected third-place popular vote winner.
If the House vote is tied, the voting continues until the deadlock is broken. If the House fails to elect a president before the constitutionally-prescribed presidential inauguration date on 20 January, then the vice-presidential winner becomes temporary president until a decision is reached. If the Senate is also tied, US presidential succession provisions would then come into effect, with the sitting Speaker of the House of Representatives assuming temporary executive duties. If the House cannot elect a Speaker, then the top job devolves to the Senate’s president pro tempore and then down to cabinet secretaries in a ranked order.
No one said American constitutional law was simple, but even if the electoral college vote is tied, there will be a new chief executive in January.
Paul du Quenoy is a historian and president of the Palm Beach Freedom Institute.