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If the electoral college is deadlocked, the House elects the president. However, each state gets 1 vote, so Massachusetts gets 1 vote despite being much smaller than Texas, for example.

At present, this means the Republicans would have an advantage because they have a majority in more state delegations even though the Democrats have more seats overall.

Wikipedia says

Historically, a delegation that did not give a majority of its vote to any one candidate was marked as "divided", and thus did not award its vote to any candidate. This practice, set by House rule, was responsible for turning the Jefferson–Burr election of 1801 into a multiple ballot election. It was not a factor in the 1825 contingent election. The House could modify the rule for future contingent elections if it so chose.

Does this mean that the majority (Democrats) could change the rule to something like 'only unanimous votes count, otherwise the delegation doesn't get a vote') and win the presidency that way? Or just deliberately derail the system and mark time until January the 20th, when the Speaker will succeed to the presidency because the incumbent's term is over and the speaker is next in line after the President and Vice-President are no longer in office?

  • Since you added a wild scenario where the House runs the clock so no one has a majority: It would only be the Speaker if there is no VP selected. The VP is selected by the Senate, each Senator votes. So if the DEMs take over the Senate, we would get President Harris. If the GOP holds, President Pence. If 50-50, I don’t think the sitting VP (also Pencs of course) gets to vote but I am not certain. – Damila Sep 26 at 1:47
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No, the one vote per state rule comes from the 12th Amendment and could only be replaced or superseded by a new constitutional Amendment. See the bolded portion of the Amendment below:

... 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 ...

https://www.constituteproject.org/constitution/United_States_of_America_1992#162

This article from the Congressional Research Service provides a bit more detail on how this would work:

Each state, regardless of population, casts a single vote for President in a contingent election. Representatives of states with two or more Representatives would therefore need to conduct an internal poll within their state delegation to decide which candidate would receive the state’s single vote

Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis

As you point out, the details of how this election would be carried out are based on House rules and can be determined by the party that controls the newly elected House. However the 1 vote per State requirement is laid out in the Constitution and can't be changed.

You mention the issue of "divided" delegations. The way that worked was that a state delegation could only cast a vote a candidate if a majority of the delegation voted for that candidate:

For the first round vote, within state delegations, a majority of state delegation Members present and voting was required to cast the state vote. If a majority was obtained, the name of the preferred candidate was written on the second round ballot. If there was no majority, the second round state ballot was marked “divided.”

A divided ballot could result if the vote was tied, if there were multiple candidates, so no one received a majority, or if enough members of the delegation were absent from the House so that the leading candidate did not receive a majority of the total. While the House could change the rules to allow states to cast a vote for the plurality winner, it seems unlikely that a state would be unable to reach a majority thanks to modern transportation and the strength of the 2 major parties.

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  • hmmm, PA has 9 R and 9 D ... that would be interesting. All the rest are at majority one party or the other. (in a watch the train wreck sort of view) – CGCampbell Sep 25 at 15:15
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    @CGCampbell This would be decided by the new house, so it's possible that this could change. An interesting question would be what the House rules could do with a tie. There's precedent for discarding the vote as "divided", but could they say, for example, that in the case of a tie vote the state's popular vote total would be the tiebreaker? – divibisan Sep 25 at 15:27
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    But what counts as 'divided'? Couldn't they just decide that any state not unanimous was 'divided'? – Ne Mo Sep 26 at 20:42

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