Electoral college tie: Would Kamala Harris or Donald Trump win?

Here's who would decide a winner if neither candidate gets to 270 electoral votes

The US constitution allows for neither candidate taking the required 270 electoral college votes, but experts say finding a path forward could be rocky. AFP

Although unlikely, there are a few scenarios in which both Kamala Harris and Donald Trump could reach 269 electoral college votes, one short of the 270 required to become US president. That would begin a tiebreaking process that could prove divisive and controversial.

“The US constitution calls for this to go to Congress,” said Timothy Kneeland, a professor of history, politics and law at Nazareth University in upstate New York, explaining the various ways in which a winner would be chosen in the event that neither candidate reaches the required number of electoral votes.

More specifically, the decision would go to the House of Representatives. The tiebreaking mechanism is codified in the US constitution.

“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,” reads the 12th Amendment to the US constitution, ratified in 1804.

Before we get into the specifics of how this might unfold in 2024, it is important to understand how the electoral college works.

In US presidential elections, 538 electoral votes are divided between the 50 states and the District of Columbia based on population size, making 270 the required threshold to win the presidency by a simple electoral college majority. The winning candidate in each state takes all of that state's electoral votes, with the exception of Nebraska and Maine, which award electoral votes proportionally.

Based on recent polling, electoral college votes allocated to each state based on census data and basic mathematics, there are a few scenarios that could lead to a 269-269 tie.

Hypothetically speaking, assuming Republicans retain control of the House, Mr Trump would likely be selected as the next president. “Each state would get one vote,” Prof Kneeland said, explaining how the house members representing each state would have to vote to determine which candidate would be awarded that state's one vote.

“So you would need 26 votes out of the 50 states to become president,” he said, adding that a potential controversy could arise with regard to the District of Columbia, which is not a state, although it does have electoral college votes.

Heavily Democrat Washington has long sought statehood but has been repeatedly blocked by Republicans That controversy, along with the ambiguity and uncertainty about exactly how the congressional representatives would organise and allocate their state's designated vote, according to Prof Kneeland, could lead to some confusion.

“They might let it go through the courts,” he said, hinting at lawsuits that might be filed as a result, similar to the 2000 election when Democratic vice president Al Gore won the popular vote, but ultimately lost to the Republican challenger George W Bush amid vote recounts in the state of Florida.

There is another spanner that could be thrown into a potential electoral college tie between Kamala Harris and Donald Trump, and it involves how a US vice president would be chosen in such a scenario. “The Senate will vote for the vice president,” Prof Kneeland added, referring to the US constitution.

With the Democratic Party holding a slim majority in the Senate, that could mean the Republican president-elect Mr Trump's vice president would be the Democrat Tim Walz, although even that is unclear given the unprecedented nature of a potential tie in the modern era. Also adding to the uncertainty are the four registered independent senators who caucus with the Democratic Party. There is simply no guarantee of who they would pick for the office of vice president.

Tie-breaking history

Although incredibly rare, electoral college discrepancies and the failure of candidates to reach the electoral threshold are not unprecedented. Prof Kneeland points to the election of 1876, in which, for a variety of reasons, chaos ensued without a clear winner between the Republican nominee Rutherford B Hayes and the Democratic nominee Samuel J Tilden.

“They put together a commission,” Prof Kneeland said, noting that even the commission proved controversial to some extent before it selected the Republican, Mr Hayes, as the winner. The electoral college tiebreaking rule as it stands today is rooted in what many consider to be the disastrous and confusing election of 1800 between Thomas Jefferson and Aaron Burr, which prompted the ratification of the US constitution.

Yet with an increasingly polarising US electorate, Prof Kneeland cautioned that a potential electoral college tie could become very messy, and that any clear path forward mentioned in the US constitution could quickly blur.

Adding to the friction is the electoral college system itself, which is often a subject of criticism. Most recently, the Democratic vice presidential nominee Mr Walz said during a fund-raising event that the electoral college should be abolished, and that the winner of the popular vote should take the White House instead.

Democrats have increasingly called for the elimination of the electoral college in the wake of the 2000 and 2016 elections, in which Mr Gore and Hillary Clinton won the popular vote but lost the electoral college. Few if any Republicans have called for the abolition of the electoral college.

Despite the heightened scepticism surrounding the electoral college, Prof Kneeland said it is ultimately grounded in the US constitution, and that he does not see it being eliminated. Any amendment to the constitution would require the approval of three fourths of US state legislative bodies.

“That's what's kept many of these states from changing this, and it would also require ballot initiatives and referendums within those states,” Prof Kneeland said. He said it was more likely that more states would join Maine and Nebraska in allocating their votes proportionally. However even that sort of change would hit a lot of roadblocks, he said.

“Think about it: if you're the party in power in those states, why would you give the other party any chance to get some of the electoral votes?” he said “I like the idea, it would work well, but it's tough to pull off.”