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I have seen polls that indicate that Evan McMullin is statistically even with Trump and Clinton in the state of Utah. With the possibility of six votes taken away by another candidate it is possible that neither Trump nor Clinton secures 270. I've read conflicting explanations of how the election would be resolved in the case that no candidate secures a majority of electoral votes.

How exactly will the election be resolved if no candidate receives the needed 270 electoral votes?

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    I think it should go without saying that I'm looking for authoritative sources here. – Nathan L Oct 12 '16 at 14:41
  • This post is about New Mexico going to Johnson, but it's still applicable to this question. – Bobson Oct 13 '16 at 9:47
  • This post more specifically addresses Utah, including the actual politicking that might happen. – Bobson Oct 14 '16 at 11:35
  • @Bobson, you need to summarize your 2nd link and turn it into an answer. – Nathan L Oct 14 '16 at 14:26
  • fivethirtyeight.com/features/… – Nathan L Oct 18 '16 at 15:32
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Both Rathony's answer and Brythan's are entirely correct about the authoritative, legal answers as to what would happen if neither candidate received 270 electoral votes. This FiveThirtyEight article takes it a step further, though. It explores the actual, political realities which would influence how the Constitutional laws would be applied in this particular election, rather than the general case. (At least, the realities as of October 13th, anyway.)

Specificially, it's looking at the case where Evan McMullin (or Gary Johnson) win at least one electoral vote (which likely means winning Utah or Nevada) and are thus in the list of "the persons having the highest numbers not exceeding three on the list of those voted for as President" (as per the 12th).

So let’s say the Democrats pick up a couple of states in the election, while Utah and Nevada go for McMullin and persuade a few other Republican states to join them right away, such that the breakdowns goes something like – with 26 needed to win — 19 delegations for Clinton, 23 for Trump and eight for McMullin.

Meanwhile, the vice president would likely be known. Since the Senate can only choose between the top two candidates (presumably Kaine and Pence), it would take a perfect tie for them to remain deadlocked.

So here’s the rub: Whichever side loses in the Senate might have good reason to make a deal with a McMullin contingent in the House. That is, if Kaine is VP and the McMullin contingent holds fast, the party-loyal Republican coalition may be pressured to accept McMullin as better than Clinton (who would win if McMullin states sided with the Democrats) or Kaine (who would become president if the House remained deadlocked). While if Pence wins in the Senate, the Democrats may be pressured to accept McMullin rather than Trump or Pence — especially if they make deals for political appointments or legislative commitments. While this may sound shady by U.S. norms, it’s not unlike what happens in parliamentary systems around the world.

In other words, in the highly unlikely scenario that neither candidate receives an outright majority because a state or two went third-party, and House Republicans have enough gumption to oppose Trump, there is a strong possibility we will end up with the first split White House since 1796.

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    Note that if the House remains deadlocked, the Vice-President (VP) becomes the President. While Never Trump Republicans might prefer McMullin to Trump, they are likely to prefer Pence over McMullin. So this really only matters if Kaine is the VP choice. But if Kaine is the VP choice, the Democrats have no reason to vote for McMullin. So this would require pro-Trump Republicans to compromise, which seems unlikely on the face of it. At least in the numbers needed. Even a small group voting for Trump in a few states could keep Republicans from a majority of the delegations. – Brythan Oct 16 '16 at 10:43
  • @Brythan - If Kaine is the VP, the two parts of the Republican vote (McMullin and Trump) will need to unify to keep a Democrat out of the White House. The article assumes that the McMullin contingent will hold out and the Trumpers will be pushed to join them, although going the other way is a possibility. ---- On the flip side, if Pence is the choice, and the McMullin group is just "Anybody but Trump" rather than really pro-McMullin, you're quite right that both parts of the party may prefer to let Pence get the office instead of working with the Democrats to get McMullin in. – Bobson Oct 19 '16 at 0:59
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The answer below is from FAQ on National Archives and Records Administration

If no candidate receives a majority of Electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most Electoral votes. Each state delegation has one vote. The Senate would elect the Vice President from the 2 Vice Presidential candidates with the most Electoral votes. Each Senator would cast one vote for Vice President. If the House of Representatives fails to elect a President by Inauguration Day, the Vice-President Elect serves as acting President until the deadlock is resolved in the House.

(Emphasis added)

The Congress meets in joint session on January 6, 2017 to count the electoral votes (this count happens whether the election is close or not). If no candidate has reached 270 Electoral Votes, then the House and Senate take over and elect the President and Vice-President, respectively. Note that the newly elected Congress will be sworn in on January 3rd, 2017. It is that new Congress that takes on this responsibility.

[Source: Electoral College Ties at www.270towin.com]

  • Which state delegation sends its vote, those holding office during the election year or those newly elected in November? Obviously that effects things, and one vote per state effects things too. How do the states with mixed party representation decide how to vote? – Nathan L Oct 12 '16 at 16:31
  • @NathanL 270towin.com/content/electoral-college-ties – Rathony Oct 12 '16 at 16:39
  • Would the House or Senate have only one vote, or would they repeat until a decision is reached? – DJohnM Oct 12 '16 at 17:36
  • @DJohnM If the House vote is a tie and/or the Senate vote is a tie, then each Chamber keeps on voting until they get a clear majority. In 1800 the House needed 36 ballots before it chose T. Jefferson. Also note that in the case of a tie in the Senate vote for VP, the tie is not broken by the VP. It is the Senate that chooses the VP in this instance, not the Senate and the VP. – AmE speaker Nov 23 '17 at 19:38
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The authoritative source is the 12th amendment:

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. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

Note that the fourth day of March text was changed in a later amendment to the 20th of January.

The state delegations in the House of Representatives vote state-by-state. The candidate with a majority of the states wins. If no candidate wins a majority of the states, it goes to the Vice-President. Note that the Vice-President is chosen (possibly by Senate vote) prior to the presidential selection. And both houses of Congress change prior to the vice-presidential and presidential selections.

The Republicans currently have a clear majority of the state delegations. This is likely to continue. They have a stronger control over the state delegations than they do over the House majority. This is because the small states that Republicans dominate count for as many votes (1) as the larger states where Democrats are most likely to gain seats.

That said, Utah is unlikely to keep presidential candidates from 270. It's a clear Republican state in most elections and only has six electoral college votes. Donald Trump would need to make a major comeback to limit Hillary Clinton to 269 or fewer electoral college votes. If he did that, he'd presumably gain votes back from Evan McMullin. It would be more effective for a Democratic state like Maine, Massachusetts, Minnesota, or New Mexico to go for a third-party candidate, as that would reduce Clinton's overwhelming lead.

It's not clear that a McMullin win in Utah would change anything even if it did keep the candidates from winning the electoral college. He might have trouble rallying Democrats behind him to join with Never Trump Republicans to flip state delegations. It's possible, but not decisive. By contrast, Johnson would have a much easier time appealing to Democrats and still has Never Trump appeal to Republicans. And of course, Johnson has actual governing experience, where McMullin is a first-time candidate.

The more likely effect would be to send the election to the House and Trump voters to apply enough pressure to give him the election. But if Utah voted for Trump, he'd win the election anyway. The greater risk seems to be that a four-way split would give Clinton victory in Utah. But that seems unlikely to occur if Trump is anywhere close to 270 electoral votes.

  • The question clearly asks What happens if no candidate reaches 270 electoral votes? I don't think the last half of your answer is necessary. You don't need to predict anything. – Rathony Oct 12 '16 at 18:41
  • The question also specifically mentions the specific issue of Utah. Note that Utah is entirely unnecessary here. A 269-269 tie has the same effect. – Brythan Oct 13 '16 at 0:24
  • @Brythan 269-269 is extremely unlikely. I mentioned the possibility of Utah taking its 6 votes out of play only to give context that no matter how unlikely, it's more likely this year than at any time in recent memory. I agree that the odds are still small. That said, you should probably find sources for any opinions you expressed in your answer or remove them if you want me to consider accepting it. – Nathan L Oct 13 '16 at 18:22
  • A 269-269 tie in some future election is more likely than failing to reach 270 votes in this election because of a failure in Utah. Note that the chance of a tie is roughly .4% in 538 simulations. McMullin has about a 9.7% chance of winning Utah. Utah has about a 3.1% chance to be decisive. Putting that together, the Utah scenario is about a .31% chance, less than that of a tie. If you remove the irrelevant info about Utah from your question, I'll remove it from my answer. An electoral college deadlock was more likely in 1992 and 1968 than this year. – Brythan Oct 14 '16 at 2:03
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    Whelp, it turns out that the biggest protest vote did occur in Utah, but little else. – Nathan L Nov 9 '16 at 18:15

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