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Recount? Tie? How to navigate the post-electoral process

By nearly every indication, the 2012 presidential election is heading toward a photo-finish both in the national popular vote and in the state-by-state Electoral College battle that will ultimately decide the winner.

NBC's John Yang explains why voting in the crucial battleground state of Ohio may end up delaying the presidential election results.

 

The tightening of the race has both campaigns in county-by-county, hand-to-hand combat to turn out their voters.  It’s also put some scenarios in play that could stir the kinds of passions that were on display during the 2000 Florida recount: 

  • An electoral vote tie at 269 to 269, unlikely, but possible, especially with the current roster of competitive states on the electoral vote map.
  • A split between the winner of the national popular vote and the Electoral College vote, which has happened four times in our nation’s history (although some political scientists have concluded that John F. Kennedy may have also lost the popular vote in 1960).
  • Potential litigation over ballots that threatens to keep one state’s electoral votes from being counted, something that is conceivable in some key states. 

A 269/269 electoral tie could happen in the 2012 presidential election. If it did, how would we determine who would win the election? The Daily Rundown's Chuck Todd breaks down the 269 possibilities with the decision app and talks with NBC's Pete Williams about how the U.S. Supreme Court would determine the winner.

But the Constitution, as well as federal and state law, provide specific rules for handling these scenarios. And even in a clearly decided election, the most complex and potentially significant decisions to determine who takes the oath of office on Jan. 20, 2013, happen after voters cast their ballots. 

Here’s a guide to the legal and constitutional steps that must be taken after Election Day: 

What happens if the electoral vote ends up in a 269-269 tie?

From a total of 538 electoral votes, at least 270 are needed to win the White House. The current configuration of battleground states with places such as Iowa and Colorado being hotly contested means that in a number of outcomes, Republican candidate Mitt Romney and President Barack Obama could tie at 269. In one tie scenario using the current battleground states, Romney carries Virginia, Florida, Iowa, Colorado and Nevada, but Obama wins Wisconsin, Ohio and New Hampshire. 

In this kind of scenario, the 12th Amendment to the Constitution says that if no candidate gets a majority of the electors, then the House of Representatives chooses a president from among the top three vote-getters.  This would be done by the newly-elected House, not the current one. 

Brendan Smialowski / AFP - Getty Images

Voters use touch screen voting booths to participate in electronic voting during the first day of early voting October 22, 2012 in Washinton, DC. Citizens of the District of Columbia began early voting today for the November 6th elections which will include the 2012 US Presidential election. AFP PHOTO/Brendan SMIALOWSKIBRENDAN SMIALOWSKI/AFP/Getty Images

Each state’s delegation in the House would have one vote. So, for example, Ohio’s 16 members of the House would caucus and vote as a bloc. There are almost certain to be more Republican House members from Ohio than Democratic members in the new Congress, so Ohio’s one vote would go to Romney. 

In the new Congress which convenes on Jan. 3, it seems likely that there will be 28 or 29 Republican-majority delegations – more than enough to elect Romney. In this situation, the newly-elected Senate chooses the vice president with each senator having one vote. It is unclear which party is likely to control the Senate in the next Congress. 

Why doesn’t the nationwide popular vote total determine who the president is?

Because voters don’t vote directly for a presidential candidate; they vote for a party-chosen slate of electors in each state who, in turn, actually chose the president. 

Forty-eight states have laws that mandate a winner-take-all system: The candidate with the statewide plurality of the votes gets all the electoral votes from that state. 

But in Maine and Nebraska, one elector is awarded to the candidate receiving the most votes in each of the congressional districts, and the remaining two electoral votes are awarded to the candidate who gets the most votes statewide. Obama got one electoral vote from Nebraska in 2008. 

What are the significant post-Election Day deadlines which state officials must meet?

Dec. 11 is the “safe harbor” date which means that if a state has chosen its winning slate of electors by that date, the state has a greater assurance this slate will not be challenged when Congress meets to count the electoral votes. Dec. 17 is the date on which the winning slate of electors meets in each state capitol to cast their votes. Jan. 7, 2013 is the date Congress meets in joint session to count the electoral votes. 

In some states there may be recounts and ballot disputes that may threaten to bump up against the “safe harbor” deadline. 

In Ohio, for example, the counting of provisional ballots doesn’t begin until 11 days after Election Day and the county boards of elections must certify the vote from their county by Nov. 27. 

“When you see really close elections being recounted in Senate races – in Minnesota (in 2008) you saw the recount go on for nine months – (but) we have to finish the presidential election very quickly,” said John Fortier, director of the Democracy Project at the Bipartisan Policy Center and editor of a guide called “After the People Vote.”

 “There’s a lot of pressure to get it done, but there’s also a lot of pressure from both sides legally to change the rules, change the deadlines.”

Who appoints the electors?

The political parties choose the electors, who are loyalists selected for their reliability. In Michigan in 2008 for example, the Democratic presidential electors included labor union leaders Ron Gettelfinger and James Hoffa. 

What would happen if a state, due to litigation and ballot disputes, can’t finish its vote count and therefore can’t choose its electors by the Dec. 11’safe harbor’ date?

It is likely that the legislature of that state would appoint a slate of electors, rather than allowing the state to lose the opportunity to have some voice in the election. Article Two of the Constitution gives the state the power to appoint electors “in such Manner as the Legislature thereof may direct … .” But if the state legislature is divided between a house controlled by one party, and a state Senate controlled by the opposing party, then the state might not be able to cast any electoral votes. 

Can an elector pledged to vote for a candidate cast his or her vote for someone else?

Yes. But since the first election in 1789, only 11 electors have voted for a presidential candidate other than the one to whom they were pledged. In 2004, for example, in what was an apparent error, a Minnesota elector who was pledged to vote for Democratic presidential candidate John Kerry, instead voted for Kerry’s running mate, John Edwards. 

When Congress meets to tally the electoral votes, can a member of Congress try to dispute the election if he or she thinks some fraud was committed?

If at least one member of the House and one member of the Senate object to any electoral votes from a state, then the House and Senate each go into separate sessions to debate and vote on the contested electoral votes. Both the House and the Senate must vote to reject the challenged electoral votes in order for them to be rejected.

 How might a disputed election this year be different from the 2000 Bush-Gore disputed election – what’s changed since then?

University of California, Irvine, law professor Richard Hasen, author of the new book “The Voting Wars,” said the most important factors that have changed are “The emergence of election law as a political strategy: a doubling of the amount of election litigation since the pre-2000 period, the rise of partisan election laws (such as voter ID laws), the lack of public confidence in the fairness of the process, and the rise of social media.” As Hasen said in his book, “Twitter and other social media make the heat of the moment even hotter.”