Josh Goodman is a former staff writer for GOVERNING..E-mail: firstname.lastname@example.org
The 2000 presidential election hinged on state and local election administration (in Florida). The outcome of the 2008 presidential election may be determined by state election law.
More and more states are allowing early voting, mail-in voting and no-excuse absentee voting -- forcing the campaigns to adjust their turnout tactics. Nebraska and Maine award their electoral votes by congressional district, which could give McCain or Obama an electoral vote they wouldn't otherwise get. And, perhaps most intriguingly (though probably least importantly), state election law could play a key role if the Electoral College ends in a tie.
Greg Giroux of CQ had a great article this week on what happens in the event of a tie. The first thing is that the electors, those 538 obscure people who make up the Electoral College, have to vote.
That takes place Dec. 15. But Giroux notes that we don't actually find out the results of that vote until Jan. 6, when Congress counts the votes.
Those dates are relevant because of the possibility of faithless electors. A tie might not really be a tie. If one elector decided to vote for the opposing party's canidate, instead of the one to whom he or she was pledged, a 269-269 election would turn into a 270-268 election.
In others words, if the Electoral College is tied on election night, we'll be stuck waiting around for six weeks for the votes to be cast. Then, we'll wait another three weeks to find out what happened. Then, assuming it is a tie, the House of Representatives votes on who should be president. Maybe this made sense 200 years ago?
So, obviously, the possibility of faithless electors will become a huge issue if the Electoral College is tied. Here's where state election law comes in. As Giroux points out, about half of the states require electors to be faithful.
With a tie, these laws would instantly enter the spotlight. I wonder if, under this scenario, some legislatures would rush into special session to pass faithful-elector laws.
Before you spend too much time fretting about mischievous electors, it's worth noting that Congress has some power to decide whether to accept electoral votes. Here's what Giroux says:
If it's revealed that one or more faithless electors has switched sides, the losing party would challenge those electoral votes as not "regularly given."
The more reassuring point, however, is that electors are party activists who are picked for their loyalty. They're supposed to be more faithful than the Pope.
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