ELECTION NIGHTMARES

In case you are sleeping too well and need something to keep you awake at night, try thinking about the presidential election process.  Not the age or moral character of the candidates. Not their positions on the issues.

Think about the Electoral College, where current polling numbers portend a coming crisis. Then bid farewell to sleep.

For months, we have heard that the popular vote for president is likely to be close. Polls aggregated by the Real Clear Politics website, which has been called the “Dow Jones of campaign coverage,” have shown that the gap between President Biden and former President Trump has not exceeded two percentage points since February. During much of that time period, the gap has been less than one point.

But there’s little reason to worry about the closeness of the popular vote because we don’t choose our presidents based on such votes. Instead, of course, we select our presidents based on who gets a majority of the Electoral College votes. And if prospects for a very close popular vote scare you, you should find the prospects for a close Electoral College contest downright terrifying.

There is a realistic possibility that come November the Electoral College tally could be decided by only two votes. There is even a possibility that the Electoral College could end up in a tie. That latter scenario may be less realistic, but it is not at all far-fetched.

Consider the numbers. According to the Real Clear Politics aggregation of polls, Trump is likely to win 219 Electoral College votes to Biden’s 202. That means that the election will be determined by the remaining 117 votes.

Now drill down and look at those 117 swing votes.

Trump has statistically significant leads (over 4 percentage points) only in Arizona (11 electoral votes), Georgia (16), Nevada (6), and North Carolina (16). Assuming those leads hold up, Trump will garner 268 electoral votes. That’s a lot. But it’s two votes shy of the 270 required to win.

Biden could possibly win most if not all of the remaining states. He leads in Virginia (13 electoral votes) and Minnesota (10).

The other three states are very much up for grabs. In Wisconsin (10 electoral votes), Trump leads by a statistically meaningless 0.1 percent of a point, and in Michigan (15), he leads by a statistically meaningless 0.3 percent of a point.  Trump’s lead in Pennsylvania (19) is slightly larger, 2.3 points, but still well within the margin of error. Moreover, the Democratic Senate candidates in all three states are consistently outpolling their Republican opponents.  The Biden campaign is pouring massive resources into these battleground states, all of which he carried in 2020. If history repeats itself and he carries these states again this November, it will add 44 electoral votes to his tally, raising his total to 269, one vote more than Trump’s 268. But again, not enough to reach the 270 required to win.

Which brings us to Nebraska’s Second Congressional District – and another reason to forego sleep.

Most states award their Electoral College votes on an all-or-nothing basis: the candidate receiving the most popular votes gets all of the state’s electoral votes. Nebraska is an oddity. It awards two of its five Electoral College votes to the statewide victor. Its remaining three Electoral College votes are awarded separately to the winner of each of its three congressional districts. (Maine employs a similar hybrid system.)

Trump will almost certainly defeat Biden in the statewide Nebraska race. Trump carried the state by almost 20 points in 2020, and by 25 points in 2016. There is also no doubt that Trump will defeat Biden in two of Nebraska’s three congressional districts.

But Nebraska’s Second Congressional District, which encompasses the Omaha – Council Bluffs metropolitan area – is wildly unpredictable.

In 2008, the District went for Obama by two percentage points. In 2012, it swung nine points in the other direction, choosing Romney by seven points. In 2016, it voted for Trump by two points. But in 2020, it swung eight points in the other direction, choosing Biden by six points.

An April poll of the District showed Trump ahead by three points. A May poll showed Biden ahead by five, a swing of eight points.  With such fluctuations, the only thing we know for certain is that Nebraska’s Second Congressional District will be as unpredictable in 2024 as it has been in the past.

If Biden wins the District, and the other assumptions mentioned above hold, then he will win the Electoral College by a vote of 270 to 268. But if Trump wins the District, and those other assumptions hold, there will be a 269 – 269 tie.

If you are not scared already, the prospects of an Electoral College tie should push you over the line.

In case of a tie in the Electoral College, the presidential election is determined by the House of Representatives. The vote is by states, not by individual Representatives. Each state, regardless of size, gets one vote. So if the vote were held today, California, with 40 Democratic representatives and 12 Republican representatives, would cast exactly one vote for Biden. Wyoming, with its one Republican representative, would also cast exactly one vote, this time for Trump. To get elected, a candidate must win 26 congressional delegations.

Right now, the House Republicans control 26-congressional delegations in the House. Democrats control 22 congressional delegations, and two are evenly split.  But the current congressional delegation composition doesn’t really matter because the vote takes place on January 6, after the new House membership is seated on January 3.

There is no way of knowing whether the Republicans will maintain their 26 congressional delegation majority, or whether the Democrats will achieve a majority. The most recent generic congressional vote poll shows – you guessed it! – a tie.  That means that a 25 – 25 split in House congressional delegations is a very real possibility. In other words, a tie in the Electoral College might be followed by a second tie in the House of Representatives.

In case of such a tie, the House of Representatives is supposed to keep voting until the tie is broken, like a hung jury forced to reach a verdict. Presumably, at some point, one or more representatives would reject party affiliation and vote for the other party’s candidate, so that the nation would finally have a president and the process of governance could resume.

But that would require a certain degree of statesmanship among our elected representatives, a commodity in questionable supply. And it would also require time. Under the 20^th Amendment, if no candidate is elected by noon on January 20, when the new presidential term is set to begin, the Vice President steps in as Acting President.

That is, assuming there is a Vice President.  Now here we go again. There is a real risk that the election of the Vice President could also end in a tie.

 Electoral College electors vote separately for President and Vice President. Since electors nearly always votes along party lines, if there is a tie for the President, there will almost certainly be a tie for the Vice President. In case of such a tie in the Electoral College, the Vice President is chosen by the Senate, with each senator accorded one vote. The Democrats currently enjoy a 51 – 49 majority in the Senate. The Republicans are expected to make gains in the Senate this November. But if they are limited to flipping just one seat, the Senate would be divided 50-50. In which case, there would be yet another deadlock. There would be no Vice President to step in as Acting President on January 20.

In that dark scenario, the nation would not grind to a halt. In the absence of a qualified President and Vice President, the Presidential Succession Act would kick in, and the person acting as President would be, in order of qualification, the Speaker of the House, the President pro tempore of the Senate, the Secretary of State, and so on down the line of Cabinet members.

But merely imagining such scenarios is enough, like Macbeth, to murder sleep. Nearly all of these possibilities would set us on courses never before traversed. The deep distrust toward our institutions (Republicans fear the Deep State; Democrats scorn the High Court) would intensify many-fold. Courts would be flooded with lawsuits, and the streets would be full of loud and potentially violent demonstrations.

It’s enough to make one hope that the victor, no matter who, wins by a landslide.