With results coming in, there is a distinct possibility that the United States could be heading for an Electoral College tie of 269-269, something that hasn’t happened in modern history.
In order to win an election, a candidate must win a majority in the Electoral College, not just a plurality of votes. If there’s a tie, a so-called contingent election is a procedure to elect the president or vice president by a vote in the House of Representatives; for the vice-presidential candidates, the US Senate will vote on who should serve.
The first Electoral College deadlock was in 1800 when Thomas Jefferson and Aaron Burr were tied with 73 Electoral College votes after a four-way race, that saw John Adams and Charles Cotesworth Pickney also receiving 64 and 63 votes respectively. No candidate secured a majority and a contingent election was held, in which Thomas Jefferson was favoured and became the 3rd President of the United States.
The second time was in 1824. It wasn’t a tie but a four-way split that failed to produce a majority, so the vote went to the House. Although Andrew Jackson had won the popular vote in that election, the House picked John Quincy Adams as president (the son of former president and 1800 election candidate, John Adams). Jackson later served as president, winning in 1828 and 1832.
The last time a contingent election was needed was in 1836, where electors in Virginia refused to vote for Martin Van Buren’s vice-presidential nominee Richard Mentor Johnson. Whilst this was not the result of a tie, the contingent election that took place is similar to what would happen if Trump and Biden are deadlocked.
As the Congress must be sworn in before the President, it is likely that the contingent election would be held amongst the incoming Congress, which has already been called for the Democrats.
The Democrats held the House before the election, flipping it from there Republicans in the 2018 mid-terms, and have likely increased their majority in 2020.
It’s important to note that what may look like a tie on election night may not be a tie in reality due to faithless electors – check this guide for more information.
