Newspaper OpEd (2008)

Robert P. Watson

Could Lightening Strike Twice on Election Day?

It has been eight years since the Electoral College debacle when just 537 votes and questionable voting practices and ballot design in southeast Florida decided the presidential election. From the contentious 36-day recount to the fact that the outcome of that election ended up shaping the course of both America and the world, the 2000 election was the perfect storm. So, surely it could not happen again.

According to all the reliable polls, it appears the 2008 presidential race will come down to a few key swing states, largest and foremost among them… you guessed it: Florida. My sense is that this election belongs to the Democrats but, if the polls are correct there is a slim chance lightening will strike twice on Election Day.

Many of the problems that contributed to the controversy in 2000 have yet to be remedied and there are new concerns about the accuracy of voter rolls with respect to purges, felons, and a flood of recent registrations. So too will voters in southeast Florida be using new voting machines – their third since 2000 – and, after struggling through a primary election with embarrassingly low turnout, we are expecting record numbers of voters on November 4.

In a tight race such as this one there is not only the chance that one state could decide the outcome, but that the electoral vote ends in a tie. Consider that, in 2000, Bush won by one electoral vote and, in 1800, it took 36 additional ballots to break the 73-73 tie between Thomas Jefferson and Aaron Burr.

Could a tie occur? I don’t believe it will be close, but here is a scenario: Let us assume Obama wins the all the Democratic-leaning states that he should win and McCain wins all the Republican-leaning states that he should win. The election will then come down to a few swing states, which the candidates would likely split. In the West, Obama could win Nevada and New Mexico, and McCain Colorado. In the Midwest, it is probable Minnesota and Iowa will vote for Obama, but Missouri and Ohio will vote for McCain. In the South, give McCain Florida and Virginia, but give Obama Pennsylvania and New Hampshire in the North. This scenario reflects current polling and would produce a 269-269 tie. A candidate needs 270 electoral votes to win.

So what happens? The Constitution states that, if no candidate receives a majority, the House of Representatives chooses. The Democrats have a narrow majority in the House, so they would vote for Obama. But each of the 435 members of the House wouldn’t get a vote. Rather, under the Constitutional provision each state delegation casts one vote. This means that California, with a population of nearly 37 million (and 53 members of the House), gets one vote; but Wyoming, with a population under a half-million (and just one representative), also casts one vote. To win, a candidate needs a majority of the states: 26. At present, the Democrats constitute the majority of congressional delegations in 27 states.  So, Obama would win by one vote.

It is less clear who would become vice president. The Constitution allows the Senate to pick the VP, but the party composition of the Senate today is 49-49, with two independents. The two independents would likely split their votes (Saunders going Democratic, Lieberman supporting his friend McCain’s pick), leading to a 50-50 tie, which would allow Vice President Cheney to break the tie and make Sarah Palin his successor. We would have an Obama-Palin Administration, with both individuals winning by a single vote.

All this might change if the composition of Congress changes after the election and the Supreme Court would likely weigh in to unscramble the eggs. The main problem with presidential elections – including the 2000 election – is the existence of the Electoral College, a convoluted, undemocratic system which few Americans understand, the Founders themselves disliked, and one that failed to work properly in 1800, 1824, 1876, 1888, and 2000. The fact that the aforementioned scenario could happen (although very unlikely) highlights the need to replace our arcane and archaic method of selecting a president.