Evan McMullin is running for president, hoping to be elected via the 12th amendment, which would require him to receive at least 1 EC vote, and there to not be a candidate that receives the minimum 270 votes. In that event.

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.

Of particular note is the vote state by state, through members of the House. Hypothetically, if a state had an even number of representatives, and was divided as to whom to support such that a majority was not achieved, how would their vote be cast for president?


2 Answers 2

  1. I wasn't able to find a conclusive legal opinion on this, and there's no precedent (the only time the 12th Amendment sent an election to the House - in 1824 - there were no state ties).

    As such, there's a strong chance that if some of the states's votes end up a tie, AND if that makes a meaningful difference to total per-state vote, no matter what actually ends up happening, someone WILL sue, and the case would probably end up with SCOTUS, to clarify what should happen. At which point, the only meaningful opinion would be that of SCOTUS.

    (having said that, it is quite possible that SCOTUS would merely uphold whatever House voting rules were decided on by the House, as per @Deplorable's answer), since House vote rules are constitutionally under House jurisdiction. But this is just my personal opinion, i'm not a SCOTUS member or even a lawyer).

  1. For someone's opinion/analysis, I found this article on FastCase legal resource, on their blog, which says (the examples given are from 2008 elections):

    Second, the House delegations of Arizona and Kansas are equally divided between Democrats and Republican Representatives in Congress (Arizona is represented by four Democrats and four Republicans, and Kansas is represented by two Democrats and two Republicans).

    There is no Constitutional or statutory guidance about breaking ties in such states, and assuming that their Representatives vote along party lines, these two states would be deadlocked, and probably unable to cast a ballot in this election.

    Again, I'd not be surprised that, even if this outcome happens, someone would sue and SCOTUS would have to review whether such a "punting" outcome is what should happen.

    Please note that having a state's vote be thrown out isn't necessarily a big deal as far as procedure goes - only 34 states' votes (2/3ds , as per 12th Amendment) are required for a quorum.

  2. Somewhat tangentially, there are measures in place that are designed to prevent pressure to vote straight party line. From Neil Bradley's blog post:

    Won’t House Members be under tremendous pressure to vote their party and state?

    Maybe, but maybe not. In the two prior instances when the election fell to the House, the Members cast their votes into special ballot boxes so it was impossible to tell how individual Members voted or even how individual states voted. In 1825, the House specifically rejected an attempt to break this secrecy. It will be up to the House to vote on the rules they will use to elect the next President, including whether or not to continue the practice of secret ballots.

  • 1
    One question would be if the twelfth amendment alters the procedure in a significant way in that regard. Otherwise we have the 1800 election which resulted in multiple rounds of voting. It also included states which presented a tie which meant the delegation to cast a blank vote. Then a tie could not turn the result as a majority was required.
    – skyking
    Dec 8, 2016 at 11:48
  • It's also possible that the house would not specify how each state's delegation should arrive at its vote. But it seems rather unlikely that there would be fewer than 26 delegations with a majority of Republicans, so it's unlikely to matter much.
    – phoog
    Nov 30, 2021 at 0:43

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.

From "a majority of all the states shall be necessary to a choice", I take it that there needs to be a majority of positive votes in at least twenty-six of the fifty states. Ties aren't a positive vote for one candidate or another, so they don't count. If no candidate gets twenty-six states, then the original text from the twelfth amendment was

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.

This is generally considered to have been superseded by the twentieth amendment, which includes

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Both these basically agree. If the House, due to ties or other reasons, can't choose a President, the Vice-President chosen by the electors or the Senate becomes President. The twentieth amendment also considers the possibility that there will be no Vice-President chosen. If that happens, Congress has the authority to pass a law providing for the selection of a President.

Any of these choices might get litigated, and there is no precedent for it except the election of 1824. In that election, the vote was clear. Adams won thirteen of the twenty-four states. Every state voted and no state tied. Every state had a majority winner even. We don't even have a precedent for a plurality win in a state.

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    The Speaker of the house should act as president if neither candidate qualifies before the chosen date, i.e. neither candidate gets elected by the House or Senate. If the speaker refuses, then the President Pro Tempore would serve, barring that the Secretary of State should serve as president (it would most likely be the secretary from the previous administration).
    – Viktor
    Oct 18, 2016 at 0:45
  • 1
    And this year, a 50-50 tie in the Senate is actually a likely result. The amendment specifically says that the Vice-President should serve if there is no President. Ignoring whether current law says it will roll over to the remainder of the presidential line of succession, the implication is that there is no Secretary of State when the president leaves office. For example, in 2009, both the Secretaries of State and Treasury were not confirmed until afterwards. So their posts were held by acting replacements. The incumbents did not roll over.
    – Brythan
    Oct 18, 2016 at 2:18
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    @Brythan while this may generally be true, I don't believe there is a requirement for a secretary to vacate their post and since the former president no longer has any authority over them; the former president can't dismiss them. The reason secretaries leave office is because they are aware a new president will most likely appoint a new secretary and they do not wish to leave a bad mark on their record by being dismissed. Also, I don't believe the secretary of defense was reappointed between Bush and Obama's term, so there is precedent that secretaries of departments continue their term.
    – Viktor
    Oct 18, 2016 at 12:18
  • 1
    Defense (and Homeland Security) continued past the end of the term because the President-elect (Obama) asked them to do so. But in this scenario, there is no President-elect to extend the terms.
    – Brythan
    Oct 18, 2016 at 17:11
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    @Brythan: Nor is there any president to remove them. This scenario matters in nuclear war.
    – Joshua
    Nov 9, 2016 at 20:44

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