It’s October of a presidential election year, which means the political pundit class is alive with speculation of the likelihood of different results in the popular vote and the Electoral College or – and this one has really gotten people going, thanks to some speculation and number crunching by Five Thirty Eight blogger Nate Silver – if the Electoral College comes out in a 269-269 tie. (Two side points: first, take a look at the first scenario he games out; the scary part is it has the air of plausibility, that is, the electoral map theoretically could happen, even if the odds are extremely low. Second, as others have pointed out, you should know you’re being trolled when you read a sentence that states that the “probability [of a tie] has roughly doubled from a few weeks ago, when the chances had been hovering at about 0.3 percent instead.”)
The op-eds, editorials, blog posts, and tweets that game out these scenarios all operate under the premise that such an outcome would be a “constitutional crisis.” And that’s true to a point, but what I have not seen any discussion of in the mainstream media to this point is that such an Electoral College occurrence, however fluky it might be, would represent a failure not so much of the Constitution as of the political system built up around it. Such an election, in fact, does exactly what the Constitution of 1787 (as modified by the Twelfth Amendment) requires. The winner of the presidential election is the candidate with the most electoral votes; Art. II, § 1 is agnostic on the method by which each state determines its electors, and a popular majority was in no one’s imagination in 1787.
Why don’t commentators or politicians discuss the problem of an Electoral College tie (or a “split decision”) as a Constitutional matter rather than a political one? One answer comes from Sanford Levinson, whom I heard speak for the first time this week when he visited my campus. Levinson, who teaches at Harvard Law School and the University of Texas at Austin School of Law, argued simply that no one is willing to have the conversation. The discussion about the Constitution, he suggested, goes only so far for the two candidates as to express their devotion to the document of the Founders. (At this point Levinson expressed nostalgic longing for the campaign of 1912, which featured constitutional reformers Woodrow Wilson and Theodore Roosevelt as well as the future Chief Justice William Howard Taft.)
Levinson is most famous in Constitutional studies circles for his advocacy of a new constitutional convention to remedy the problems he sees in the current document—and the greatest failure of 1787, he suggests, is the empty vessel of Article V, which provides for the Constitution’s amendment with absolutely no guidance as to how it might happen. He argued in his talk on Monday that the Constitution would “render the election (nearly) irrelevant,” a provocative claim that little would occur in the sphere of domestic policy no matter which candidate wins because of the likely split in Congress. In foreign affairs, he argued, the difference matters, but in that case he critiques Presidents (dating back to Truman) for ignoring Congress in matters of war, peace, and national security.
The discussion was intriguing, and I’m glad that a number of students got to see history in action, as Levinson touched on a number of areas that we had covered in the U.S. survey within the past week, not least the vagueness of Article II’s grant of executive power. Within the context of the talk, I asked Levinson how he proposed to get a constitutional convention enacted, given that it required the assistance of the very political structures that fail in other regards now and that the very vagueness that he critiqued was a feature of the Constitution that worked well for either party at various times. His answer was not particularly satisfying – either we have to go over the cliff and have a true crisis moment (which is hopefully unlikely) or people must decide they’re just fed up. I’m not sure I’d go as far as Levinson, though I do think the conversation would be helpful, and that historians can and should take part in it to explain the processes by which the Constitution came about in 1787 and those that have shaped the document since.
What I did not get to ask about, and which may take a few more blog posts to fully flesh out, is the importance of what Levinson alluded to at the beginning of his talk: reverence for the Constitution. Setting aside how to fix any problems with the Constitution, any conversation along those lines must start from the premise that the Constitution is changeable, and I’m not sure that’s an easy starting point for many people given the enduring popularity of originalism and “Founders’ Chic.” It’s difficult, in other words, to have a true conversation about the Electoral College that elides the fact that a 269-269 tie leading to the House electing Mitt Romney as President and the Senate re-electing Joe Biden as Vice President is precisely the system the Founders bestowed on the nation.