To win the presidency, a candidate must receive 270 electoral votes. However, with polling showing Harris and Trump within the margin of error of each other in several key battleground states, it is possible the election could yield a “contingent election,” where no one receives 270 votes.
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If the election resulted in a 269-269 tie in the Electoral College, the presidential election would be placed in the hands of Congress. With the House voting based on state delegations, and the Senate voting as individual senators, the outcome of 2024 down-ballot races could have monumental effects.
The new Congress sworn in on Jan. 6, 2025, could decide whether Trump returns to the White House or Harris becomes the first female president in United States history.
What happens if there is a tie of electoral votes?
A candidate must receive a majority of the 538 electoral votes to win the presidency. If no candidate receives 270 votes, the presidential election heads to the House, and the vice president race goes to the Senate.
Under House rules, the president will be selected when they receive a majority of 26 states’ votes, which are determined by state delegation. As of September 2023, Republicans hold a 26-22 edge in House delegations, with two states — Minnesota and North Carolina.
However, the president would be selected by the new Congress elected on Nov. 5. If the delegations shift, or some become tied, it could place the House in a deadlock, according to Matthew Lebo, Western University political science professor who specializes in Congress and presidential elections.
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There could be a scenario in which Democrats control the House but Republicans hold the majority of delegations. That could mean a Democrat-majority House could elect a GOP president.
“It would be a complete mess,” Lebo said regarding the possibility of a tie. “And you know, in 2020, there was a clear winner, and that was a complete mess. So when — if we were to get to 269 to 269, then it would be incredibly contentious and possibly violent.”
On the Senate side, each senator would cast a vote as opposed to the House voting collectively in delegations. So, if Democrats flip the House and Republicans take the Senate, Congress — while highly unlikely — could elect a President Kamala Harris and a Vice President J.D. Vance.
Another aspect of a contingent election is whether Washington, D.C., and the five U.S. territories, like the Virgin Islands, could cast a ballot in the House.
Republican strategist Dennis Lennox said there is nothing explicitly stated in the Constitution that prohibits territories to vote, but a contingent election would be a “political exercise.”
“It’s kind of like impeachment,” Lennox said of the proceedings. “That would be the closest analogy — a political process that’s ultimately sausage making. And watching sausage get made isn’t pleasant.”
Contingent election unlikely but could sow ‘chaos’ in US
Most strategists agree that the outcome of a tie between Harris and Trump is unlikely. Lebo said forecasters are predicting a less than 1% chance that 2024 will yield a contingent election.
Every election cycle, people sort states in different scenarios to determine whether a 269-269 split is possible, Lebo said. Despite the 2024 election being significantly more partisan and politically charged than recent cycles, it “doesn’t necessarily mean that the chances of a tie are any higher this year than previous years.”
However, Lennox said if there was an election to make history, this would be the one.
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“Ironically, it might be appropriate, considering how many times Trump has made history,” Lennox said, noting the assassination attempts or being impeached by the House twice. “There seems to be something about Trump that shatters records.”
Lebo anticipates that Harris could reach 270 votes with wins in Pennsylvania, Wisconsin, and Michigan, even if she loses the remaining four swing states — North Carolina, Arizona, Georgia, and Nevada — and Nebraska’s swing 2nd Congressional District given the state’s electoral vote allocation rules. The 2nd District’s electoral vote has gone to Democrats despite a Republican winning the popular vote statewide, which in a head-to-head race such as this could make or break a campaign.
But what does a 269-269 split mean for delegations whose majority does not match the party of their state’s electoral winner?
“What does a Republican member of Congress do if Kamala Harris wins their state?” Lennox said. “Does a Republican vote for the person who lost their state’s popular vote?”
“Would someone elected through a contingent election be considered a legitimate president in the United States? We certainly have people now who say a president who wins the Electoral College, who doesn’t win the popular vote, is illegitimate. What would those same people say in this situation?”
A possible role for territories?
Lennox said because of this, it’s not inconceivable that a GOP delegation majority of 28 states, for example, in the new Congress could find themselves below the 26 state-majority threshold.
That’s when territories could come into play, he said, as three of the five territories have Republican members of Congress. They could offset votes from Pennsylvania, Wisconsin, or Michigan should their GOP-majority delegations decide to vote the will of their state and not their party.
Congress would likely have to adopt rules regarding territories or the district’s role in the vote, Lennox predicted, which could drag on the outcome even further.
“It would really come down to, how far are you willing to go? We certainly saw what happened when it came to the certification of electors [in 2020], how far some members of Congress were willing to go,” Lennox said. “I would be shocked if those same people weren’t willing to do that or more this time around if it were to go to a contingent election.”
Other strategists argue that while “anything is possible” regarding the outcome of an electoral tie, Trump or Harris shouldn’t change their battleground efforts. Neither candidate should zero in on gaining Nebraska’s swing district vote, for example, GOP strategist Christian Ferry said. The GOP pushed a campaign to get the Nebraska state legislature to change the rules to be a winner-take-all system, but it was unsuccessful.
“To focus your attention on that one electoral vote to avoid a scenario that’s very uncommon in our history, wouldn’t make sense to me, at the expense of spending time in Pennsylvania, where you can pick up 19 electoral votes, or Georgia,” said Ferry, who served as a deputy manager on John McCain’s 2008 campaign.
Amy Koch, Minnesota GOP strategist, said a contingent election would drag the presidential race on “state by state, district by district, and court challenge by court challenge” basis.
“Pretty much a nightmare scenario,” Koch said.
“It would be dysfunction. There would be fights in Congress. There would be — the lame-duck Congress would have an outside say, but you’d have a split there. And so, I think for everyone’s sake, we need that not to happen, right? We need a clear winner,” Koch added.
A contingent election could also sow division within the population and abroad, Lennox warned. If Harris were to win the popular vote, but the House selected Trump as president due to a 269-269 split, or vice versa, it would be “perfectly legal” but likely cause problems with the populace, the strategist said.
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“You can’t say it doesn’t have a basis in the Constitution, but could the country survive something like this? If you thought the tumult on January 6 was bad, what would it be like this time around?” Lennox said.
“How would it look to our enemies and to our allies? Yes, it’s wholly constitutional,” Lennox added. “And yes, it’s happened before. There’s precedent for it. It’s not unheard of. But what would people outside the United States who don’t know that think?”
