What Happens if the Electoral College Ties?

Joe Raedle/Getty Images
Joe Raedle/Getty Images

If there is a tie in the Electoral College, the race for president gets sent to the House of Representatives, where the top three candidates are decided by each state’s delegation as a statewide block. As a state, the representatives decide on a candidate to vote for and, after much politicking, one candidate eventually gets a majority of states and becomes president. For vice presidents it’s a little simpler: it’s only the top two candidates, each senator gets a vote, and whoever gets the majority of Senate votes wins.

Now that that’s been dealt with, how did we get to this odd scenario? And are there any ways that it can be made odder?

A LITTLE BACKGROUND

First, as a matter of clarification, the result in November is just a guideline; the real action is in December, when the Electoral College votes. While it would be a political crisis if the Electoral College completely disregarded the will of the people, it’s not impossible. Only around half of the states plus Washington, D.C. have laws that explicitly say an elector has to vote for their state’s winning candidate. And among those states the laws vary wildly.

In North Carolina, for example, failure to vote for the correct candidate results in a $500 fine and the elector is automatically removed, doesn’t have a vote recorded, and a new elector is put in place. In New Mexico, it’s a fourth-degree felony for an elector to vote for a different candidate, but there’s no provision for canceling the vote. And Ohio just has it as a vague "it’s illegal." The Supreme Court has never ruled on the constitutionality of these restrictions, as it has never really mattered and electors tend to be party faithful anyway. But for the following scenarios, it’s important to keep in mind:

Our current system is the result of the 12th Amendment, which grew out of the disastrous election of 1800. Article II of the Constitution says that each elector needs to cast two votes and the candidate with the most electoral votes wins, while second place gets the vice presidency. In 1800, the Federalist Adams/Pinckney ticket was up against the Democratic-Republicans’ Jefferson/Burr. The Federalists recognized the inherent problem with the then-current rules and gave one electoral vote to John Jay (who wasn’t even a candidate), so that Adams would have one more vote than Pinckney. However, the victorious Democratic-Republicans messed that part up and gave Jefferson and Burr the same number of votes, sending it to the House to decide which one of them would be president.

Thirty-six ballots and a truly ridiculous amount of politicking later, Jefferson was finally elected president and Burr vice president. But the flaws in the Constitution were beginning to show, and the 12th Amendment was ratified just in time for the next presidential election. The 12th Amendment changed it so that electors voted for a president and a vice president, as opposed to two presidential ballots. It also created the modern rules for tie-breaking.

WHAT HISTORY CAN TELL US

In the entire history of the country, the Electoral College has only failed to come to an agreement twice, once for president and once for vice president. Weirdly however, they were in two different elections.

The 1836 election pitted Martin Van Buren against a supergroup of Whig opponents specially picked to appeal to specific regions. The plan was to prevent Van Buren from getting a majority in any region so that the House would make the decision. It didn’t work and Van Buren won; but when it came time to count the electoral votes, Van Buren’s running mate, Richard Johnson, was one vote short of a majority. The entire Virginia delegation had cast their presidential votes for Van Buren and their vice presidential ballots for a different candidate. The election went to the Senate, which picked Johnson in a party line vote.

In 1824, Andrew Jackson won a plurality in both the popular vote and the Electoral College, but not a majority. When it got to the House, they chose second place John Quincy Adams to be president. Accusations immediately started flying that Adams had secured the support of Speaker of the House Henry Clay, who had come in fourth in the race and was thus ineligible to be chosen, in exchange for an appointment as Secretary of State. As for the vice presidency? John Calhoun has been described by one historian as “everybody’s second choice” and won Electoral College votes from all sides of the political spectrum, dominating his vice presidential opponents.

WHAT IF THERE’S NO TIE ON ELECTION DAY?

Waking up on Wednesday morning, the newspapers blare "We have a winner!" But that’s not the end of the story.

After the contentious 2000 election, with Bush sitting on 271 electoral votes and Gore with 267, there were reports and conspiracy theories of Gore and Democrat consultants trying to flip three electors (for their part, the Gore campaign disavowed the endeavor). This didn’t happen (and actually one Gore elector abstained, giving Gore 266 votes), but the fact that it was even tossed around as an idea shows that the Electoral College could in theory make up their own minds regardless of the actual results.

In 1988, it was George H.W. Bush vs. Michael Dukakis and his running mate Lloyd Bentsen. Bush won in a landslide, but one elector flipped their ballot and voted Bentsen president and Dukakis vice president, giving Bentsen one electoral vote for president (the elector, Margarette Leach of West Virginia, did it to protest the Electoral College).

It was inconsequential because the vote was a landslide. But what if it wasn’t and the election was tied?

The Constitution says “if no person [has an electoral majority], then from the persons having the highest numbers not exceeding three on the list of those voted for as president” shall the House pick the president. In a no-Electoral College-majority election, the Dukakis-Bentsen flip would have resulted in the House choosing between the top three presidential electoral vote getters—Bush, Dukakis, and Bentsen. In that case, it wouldn’t be impossible for the House to decide Bentsen as winner. And although constitutional scholars doubt whether the system would allow such a scenario to take place, Bentsen could in theory also be a vice presidential candidate (the 12th Amendment has the Senate pick between the top two vice presidential vote-getters, so Dukakis would be out).

The Electoral College doesn’t need to go down the route of people anyone has actually “voted for”’ either. In 1972, one elector cast a vote for the Libertarians, despite them only getting 3674 popular votes in the entire country. But at least they were running for president. In 1976, the two main candidates were Gerald Ford and Jimmy Carter, with Bob Dole and Walter Mondale as the respective VPs. Carter/Mondale walked away from election night the winners with 297 electoral votes to Ford/Dole’s 241. But after the Electoral College met, Ford only got 240. This wasn’t a repeat of Gore’s missing electoral vote or the Dukakis flip—Dole still got 241.

One Washington state (which Ford won) elector voted Ronald Reagan for president, Dole for vice president (Reagan would later tell the elector, Mike Padden, “Boy, we sure gave 'em a go in '76. It came so close”), which illustrates that the Electoral College can pick anyone. And the Bentsen elector actually said, “If 270 women got together on the Electoral College we could have had a woman president.”

What Makes Dogs Tilt Their Heads?

iStock.com/JoeChristensen
iStock.com/JoeChristensen

By tilting its head slightly to the side, a dog can melt the heart of even the most hardened cat person. Most everyone finds this behavior adorable, but few people can explain what compels a dog to do it. Are dogs somehow aware of the effect they have on humans, using a cute trick to exploit us for affection?

Experts say the real answer has more to do with your dog's ability to empathize. Dogs are impressively good at reading and responding to our body language and vocal cues. When you're lecturing your pooch for taking food off the counter, they're taking it all in even if the literal message gets lost in translation. Same goes for when you’re giving your pup praise. Dogs are capable of recognizing certain parts of human language, so when they cock their heads as you speak to them, it's possible they're listening for specific words and inflections they associate with fun activities like meals and playtime.

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The head-tilt may also have something to do with how the canine ear is constructed. Even though dogs sense frequencies humans are incapable of hearing, their ability to detect the source of sounds is less precise than ours. A dog's brain calculates extremely minuscule differences between the time it takes a sound to reach each ear, so a simple change in head position could provide them with useful sensory information. When dogs tilt their heads, some experts believe they are adjusting their pinnae, or outer ears, in order to better pinpoint the location of a noise.

Stanley Coren of Psychology Today believes that vision also has something to do with this behavior. If you try holding your fist in front of your nose, you can get a fair sense of what it’s like to view the world with a muzzle. When watching someone speak, the "muzzle" will block the lower part of their face from view, and if you tilt your head to one side you will be able to see it more clearly. In addition to being able to perceive emotional cues in our voices, dog can also read our facial expressions. When cocking their heads to the side, Coren suggests that dogs are trying to get a better view of our mouths, where our most expressive facial cues originate.

If your dog is a frequent head-tilter, this could mean that they're especially empathetic. Some experts have reported that dogs who are more socially apprehensive are less likely to tilt their heads when spoken to. But if your dog doesn't display this behavior, there's no need to automatically label them as a canine sociopath (especially if they have pointy ears or a flatter snout). And even if the head tilt does come from instinct, the more owners respond to it with positive reinforcement, the more likely dogs are to do it in search of praise.

Have you got a Big Question you'd like us to answer? If so, send it to bigquestions@mentalfloss.com.

Where Did the Phrase 'Red Herring' Come From?

iStock.com/Mathias Darmell
iStock.com/Mathias Darmell

You may have seen a red herring in a recent book or movie, but you probably only realized it after the fact. These misleading clues are designed to trick you into drawing an incorrect conclusion, and they're a popular ploy among storytellers of all stripes.

If you've seen or read the Harry Potter series—and really, who hasn’t?—then you may recall some of the many instances where J.K. Rowling employed this literary device. That endearing plot twist about the nature of Snape's character, for example, is likely one of the longest-running red herrings ever written.

Sometimes they aren't even subtle. Agatha Christie's murder mystery And Then There Were None directly mentions red herring in reference to a character's death, and a statue of a red herring appears in Lemony Snicket's A Series of Unfortunate Events. Perhaps most blatantly, a character in the cartoon A Pup Named Scooby-Doo who was constantly being blamed for myriad crimes was named—you guessed it—Red Herring.

But where does this literary device come from, and why is it named after a fish? For a bit of background: herring are naturally a silvery hue, but they turn reddish-brown when they're smoked. Long before refrigerators were invented, this was done to preserve the fish for months at a time. They can also be pretty smelly. As Gizmodo's io9 blog points out, it was believed that red herring were dragged against the ground to help train hounds to sniff out prey in the 17th century. Another theory was that escaped prisoners used the fish to cover their tracks and confuse the dogs that tailed them.

However, io9 notes that red herring were actually used to train horses rather than dogs, and only if the preferred choice—a dead cat—wasn't available. The idea was that the horses would get used to following the scent trail, which in turn would make them less likely to get spooked while "following the hounds amid the noise and bustle of a fox hunt," notes British etymologist and writer Michael Quinion, who researched the origin of the phrase red herring.

The actual origin of the figurative sense of the phrase can be traced back to the early 1800s. Around this time, English journalist William Cobbett wrote a presumably fictional story about how he had used red herring as a boy to throw hounds off the scent of a hare. He elaborated on this anecdote and used it to criticize some of his fellow journalists. "He used the story as a metaphor to decry the press, which had allowed itself to be misled by false information about a supposed defeat of Napoleon," Quinion writes in a blog. "This caused them to take their attention off important domestic matters."

According to Quinion, an extended version of this story was printed in 1833, and the idiom spread from there. Although many people are more familiar with red herrings in pop culture, they also crop up in political spheres and debates of all kinds. Robert J. Gula, the author of Nonsense: Red Herrings, Straw Men and Sacred Cows: How We Abuse Logic in Our Everyday Language, defines a red herring as "a detail or remark inserted into a discussion, either intentionally or unintentionally, that sidetracks the discussion."

The goal is to distract the listener or opponent from the original topic, and it's considered a type of flawed reasoning—or, more fancifully, a logical fallacy. This application of red herring seems to be more in line with its original usage, but as Quinion notes: "This does nothing to change the sense of red herring, of course: it's been for too long a fixed part of our vocabulary for it to change. But at least we now know its origin. Another obscure etymology has been nailed down."

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