“What If There is a 269-269 Tie….and a Faithless Elector?”

Ned Foley:

As of this writing, there is some chance that the Electoral College could end up in a 269-269 tie, with uncertainty on which candidate ultimately would end up ahead in the national popular vote. Under the Twelfth Amendment, a 269-269 tie goes to the U.S. House of Representatives, with each state having one vote, and a majority of all states (26) necessary to elect a president. In other words, California and Wyoming—despite their widely divergent populations—each have one vote in this special Twelfth Amendment procedure, which has not been used since 1824.

With all the recent talk about the possibility of faithless electors, one begins to ask the question: would it be possible for a faithless elector on December 19 to shift the Electoral College vote to 270-268, thereby avoiding the election going to the House of Representatives under the Twelfth Amendment? I explored that question as part of a conversation with the National Law Journal’s Marcia Coyle.

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