What happens if neither candidate wins the majority of electoral votes

As of the last election, the District of Columbia and 48 States had a winner-takes-all rule for the Electoral College. Only two States, Nebraska and Maine, did not follow the winner-takes-all rule. Any State legislature could enact legislation that would change how the Governor or Mayor of DC appoints its electors. So, a State legislature could require that its electors vote for a candidate who did not receive a majority of the popular vote in its State.

There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States, so the States may decide to use something other than their State's popular vote results to direct how their electors vote. If no candidate receives a majority of electoral votes, the Presidential election leaves the Electoral College process and moves to Congress. The House of Representatives elects the President from the 3 Presidential candidates who received the most electoral votes.

Each State delegation has one vote and it is up to the individual States to determine how to vote. Since the District of Columbia is not a State, it has no State delegation in the House and cannot vote. A candidate must receive at least 26 votes a majority of the States to be elected. The Senate elects the Vice President from the 2 Vice Presidential candidates with the most electoral votes.

Each Senator casts one vote for Vice President. Since the District of Columbia is has no Senators and is not represented in the vote. A candidate must receive at least 51 votes a majority of Senators to be elected. A tie is a statistically remote possibility, even in smaller States, and would not be known until late November or early December, after a recount and after the Secretary of State for the State had certified the election results.

Following the November election, one candidate for a Virginia House of Delegates seat was ahead by two 2 votes. Since the results were so close, there was a recount which found that one 1 vote had been miscounted. After the recount, the candidates had the same number of votes. Following State law, they drew lots for a winner.

The candidates put their names on individual pieces of paper and put the pieces in a bowl. A neutral third party pulled a name out of the bowl and that candidate was declared the winner.

A very close finish could also result in a run-off election or legal action to decide the winner. Just like a tie, State law determines how the winner is decided, and would be conclusive in determining the selection of electors. The law provides that if States have laws to determine controversies or contests as to the selection of electors, those determinations must be completed at least six days before the meeting of the electors.

The objection must be made in writing and signed by at least one Senator and one member of the House of Representatives. To produce a tie, 37 electoral votes must be switched from Biden to Trump.

The 12th Amendment says if neither candidate wins a majority of electoral votes, the House will elect the president. Each state gets one vote and it would take 26 votes to win. Republicans in the House will control 26 or more states on January 6. President Trump wanted certain states to reject the Biden electors and choose a Trump slate instead. Would that have been legal?

There's some dispute about the legislature's power to do that — especially because the process would not have been established prior to the election. The election infirmities that Trump alleged were considered by more than 80 judges, election boards, governors, and secretaries of state from both political parties.

Not a single authority determined that extraordinary irregularities existed — certainly none that would overturn the results of the electoral vote. There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised. What can be done if an elector votes for someone other than the candidate to whom he is pledged? So-called faithless electors have cast votes, but their votes have never affected the presidential outcome. Some states punish the elector; some states void their vote; some states substitute a different elector.

This past year, in Chiafalo v. State of Washington and Colorado Department of State v. In the United States, majorities rule. But there are limits. The Founders instituted a plan whereby in limited areas majorities would be authorized by the Constitution to rule. The electoral college is one more exception to majority rule. The Constitution would not have been ratified if the least populous states, and their voters, had not been protected against dominance by the most populous states.

From a libertarian perspective, how have majorities sometimes abused their power? The Framers understood that pure democracy, if not constrained, can lead to suppression of minority rights.

Those policies, unless and until they were checked by our courts, were supported by popular majorities. Fortunately, the electoral college was one — albeit insufficient — way by which the Framers intended to curb majority rule.

How do we determine the number of electors for each state? Obviously, that departure from one-man-one-vote favors the smaller states. As noted, the tilt was necessary to get the less populous states to ratify the Constitution. Currently, there are members of the House and senators, which means electoral votes.

In addition, the 23rd Amendment gave three electoral votes to Washington, DC; so, there are a total of The presidential candidate who gets a majority of electoral votes — or more — wins, even if that candidate does not get the most popular votes. Constitution gives states broad authority to decide how their electoral votes are to be divided among the candidates.

In Maine and Nebraska, two electoral votes go to the statewide winner, and one electoral vote goes to the winner in each congressional district. How can winner-take-all be reconciled with the notion of one-man-one-vote? Political outcomes are not always determined by one man, one vote. For example, it takes three-fourths of the states to ratify constitutional amendments; two-thirds of Congress to override presidential vetoes or expel a congressman; and two-thirds of the Senate to approve treaties or impeach the president.

But that problem can be fixed without resort to pure popular voting. The Maine and Nebraska alternative — because it awards electoral votes district by district — encourages candidates to campaign even in those states they might have ignored because they were so far behind in statewide polling. The presidential election is left up to members of the House of Representatives in the event of a tie or any results where no one wins electoral votes.

The choice for the vice president is left up to the Senate. Members of the Electoral College gather in their states on the first Monday after the second Wednesday in December following the election to officially elect the president. The electors will meet on Dec.

If the votes go to the House, states will vote as units. What that means: All of the House members from one state come together and vote, like their own mini state. Each delegation gets one vote.