As we’ve seen throughout the course of this presidential election, anything is possible. We all know it takes 270 electoral votes for a candidate to win, but neither could reach that number if there are close margins in one or two states or if a third party candidate gains enough electoral votes to throw things off kilter. It may be a long shot, but there is the possibility that this election could end in a tie, with circumstances similar to the Bush versus Gore recount debacle in 2000. Only, with eight justices currently serving on the Supreme Court, the decision could end in a tie with even more complications.
As University of Kentucky law professor Joshua Douglas told the Associated Press, “I call it the nightmare scenario.” Basically, when an election comes down to impossibly thin margins and a candidate pursues a recount, lawsuits and appeals can take the final decision all the way to the Supreme Court. Such was the case in 2000 when the court decided 5 to 4 stop the state-ordered recount in Florida, effectively siding with Republican nominee George W. Bush. It should come as no surprise then, that Republicans had appointed the five justices who voted to stop the recount while Democrats appointed the other four. This year, the Supreme Court remains evenly split between the two major parties.
You can thank the Republicans currently dominating Congress for creating an environment in which a tie of this caliber could even exist. Since Justice Antonin Scalia died this past February, Senate Republicans have refused to accept a replacement. In an unprecedented display of gridlock, Barack Obama’s nomination of Judge Merrick Garland has sat on the Senate floor for 233 days and counting. That’s 134 days longer than the most tedious confirmation process in decades, and Obama’s nomination has yet to pass the first step.
Though a weakened Supreme Court comprises only one element of a tie-breaking headache. If neither candidate decides to sue or demand a recount, an electoral tie would pass the decision down to the newly elected House of Representatives, where each state would get just one vote. In that case, a candidate could still not receive the required 26 votes to win if there’s yet another tie or if some delegations choose to abstain. From there, the vote could go to the Senate where it’s anyone’s guess who could take the coveted title, and Bloomberg Politics has a fairly detailed rundown of how that works. Or, for a more entertaining breakdown of tie-breaker protocol, you could always watch the fifth season of Veep, a show Julia Louis-Dreyfus has described as “a political satire, (that) now feels more like a sobering documentary.” If it comes down to a tie, it’ll truly be impossible to tell whether life imitates art or art reflects a disturbingly accurate vision of life.