As much as everyone focused on the 270 electoral votes needed to win the presidential election, the number 269 could been in play on Election Day. And the anticipation of, and provision for, that possibility, and so many other constitutional crises, is evidence of the vision of America's founding fathers.
So what would have happened if there was a tie in the electoral college? Well, following the 12th Amendment (which replaces Article II, Section 1, Clause 3 in the original Constitution), the House would then elect the president, with each state getting one vote. Given the outcome of House elections, Mitt Romney would almost certainly have prevailed. BUT...the Senate would vote for the Vice-President, and since the Democrats still control the new Senate, Joe Biden would almost certainly win.......setting up a Romney-Biden administration.
Fact is, the US Constitution provides for many an unlikely possibility, and is rooted in the anticipation of a number of potential constitutional crises such as this.
Witness just Article 1, outlining the duties and powers of the legislative branch:
Section 3, Clause 4 provides for the Vice-President having no vote in Congress except in the case of a tie vote in the senate (over which the VP presides). This was the only plausible way to break legislative deadlocks.
Section 6, Clause 2 prohibits a member of Congress from being arrested while in transit to or from, or attending, a session in their chamber of congress, except in the cases of treason, felony and breach of the peace. This was to prevent the illegitimate and politically-motivated detention of members of Congress whose votes might tip the fate of pending legislation one way or another.
Section 7, Clause 2 allows the congress to override a presidential veto with a ⅔ majority. This prevents the president from singlehandedly killing popular legislation.
Section 8, Clause 11 provides congress with exclusive authority to declare war. This is designed to prevent a trigger-happy, lone-wolf president from starting an unpopular war. (Of course, more than one president has been accused of ignoring this authority).
Section 9, Clause 8 prohibits the granting of a title of nobility to any person. This was clearly aimed at preventing any semblance of a monarchy, against which American colonists had fought a revolutionary war.
Section 10, Clause 1 prevents any state from passing, among other things, ex post facto laws, which make illegal something that was previously legal in order to prosecute a person or persons.
Section 10, Clause 3 prohibits states from entering into compacts with other states or foreign nations, thus assuring the nation would not become fractured.
In Article 2, spelling out the very limited duties and powers of the president, Section 1, Clause 7 prohibits a president from receiving a raise or cut in salary during his term. This, to prevent a partisan congress from rewarding, punishing or influencing the president. Section 2, Clause 2 requires that the Senate ratify all treaties entered into by the chief executive. This was to prevent a rogue president from entering into a disastrous treaty that would threaten the well-being of the nation. And Section 4 calls for the removal of the president upon impeachment (by the House) and conviction (by the Senate) for treason, bribery or other high crimes and misdemeanors. This represents the ultimate application of the checks and balances, the separation of powers that is the defining element of our constitutional republic.
Of all the varied and awe-inspiring accomplishments of America’s founding fathers, the anticipation of, and remedies for, a wide array of potential pitfalls or full-fledged constitutional crises was among the most overlooked.
