House Picks Prez in Electoral Tie

One near-certainty in this election of many uncertainties is that if the Electoral College (search) can't pick a winner, George W. Bush (search) will stay in the White House.

That's because the House of Representatives is and will probably remain in Republican hands.

The 12th Amendment (search), adopted in 1804 after the House took seven days in 1801 to break a tie and make Thomas Jefferson (search) president, states that when there's no electoral vote majority, the House elects the president and the Senate the vice president.

In the 200 years since, what are called contingent elections have happened only twice: in 1825, when the House chose John Quincy Adams (search) over Andrew Jackson (search) after an election fragmented by third-party candidates, and in 1837, when the Senate settled a disputed vice-presidential race.

The odds are still good that Bush or John Kerry (search) will secure 270 electoral votes, out of 538 cast, when the House and Senate meet in joint session on Jan. 6, 2005, to officially tally the results.

But in the muddled 2000 election Bush edged Al Gore (search) by 271-266, and there are several scenarios that could keep either candidate from reaching 270 this time.

If that happens, there's little question that the House would choose Bush. The newly elected House would do the voting, and the makeup of that body is not expected to change much from now. Republicans hold 227 of the 435 seats and, more importantly, have a majority in 30 state delegations.

The 12th Amendment specifies that each state gets one vote in a contingent election. Most assume that lawmakers will vote with their party, meaning that Florida, with Republicans currently holding 17 of 24 seats, and Ohio, with 12 of 18 seats held by Republicans, would probably go to Bush regardless of the popular vote.

"The pressures would simply be enormous to vote your party allegiance," said Rep. David Price, D-N.C., who has pushed for changes in the election system.

The prospects would be no brighter for Kerry if lawmakers were to vote in line with their states. In 2000, even though Gore captured more popular votes, Bush carried 30 states.

With Ralph Nader's support hovering around 1 percent, there's no chance this time of a third-party candidate preventing anyone from getting a majority.

But it is possible that the electors will split 269-269 when they meet in their states on Dec. 13 to register their votes. Also possible is a "faithless" elector confounding the process by either withholding a vote or voting for someone else.

Electoral College electors are loyalists chosen by their party and rarely — only eight times since 1948 — stray from the chosen candidate. But this time every vote counts, and already one West Virginia Republican elector has suggested he might not vote for Bush.

The biggest concern is a repeat of 2000 when the outcome hinged on the protracted legal battle over the winner in Florida. This time, both parties have thousands of lawyers watching for voter irregularities and ready to file legal challenges in states where the outcome may be in doubt.

The Congressional Research Service issued reports in January 2001 and again last September educating members on the intricacies of the electoral college system. The latest analysis pointed out the importance of a Colorado referendum that would divide the state's electors proportionally, depending on the vote count, rather than the winner-take-all system used by almost every state.

Lawsuits would be likely if proportional allocation appeared to reverse the nationwide results, the CRS said, "and might lead to a prolonged and bitter dispute, such as occurred following the 2000 election."

Price, hoping to avoid what could be multiple Florida-like situations, last month introduced legislation that would give states with contested elections an extra three weeks, until Jan. 3, to conduct recounts before state electors have to meet to certify results. But the bill isn't going anywhere this year even though disputes over such issues as new registrants and provisional ballots are waiting to happen.

"There's a higher level of suspicion and vigilance this time," Price said.

There's still one more scenario that can't be totally discounted. If Democrats pick up two Senate seats next Tuesday, they will regain control of the Senate when lawmakers convene on Jan. 6.

Without a clear Electoral College winner on that day, the country could end up with President Bush, re-elected by the House, being joined by a new Senate-picked vice president, John Edwards.