William V. DePaulo: A 269-269 electoral tie â' Biden's redemption
CHARLESTON, W.Va. -- Loss of life and destruction of property aside, this great storm is a perfect example of the unanticipated event that, potentially at least, cancels all of the well-made plans of a myriad of politicians, pundits, pontificators (and no small number of fat cats). No one has a clue whose side it will help or hurt, if either. It is the unfortunate, but perfect, ending to our impending Presidential coin toss.
At this writing, Nate Silver of the New York Times' "538" presently places the odds of a 269-269 tie in the presidential election at 0.4 percent, a 250 to 1 long shot.
And by now, lots of folks have dug up Article II, Section 1, of the Constitution to learn that in the event of a tie, the House of Representatives will pick the President, and the Senate will pick the Vice President.
Predictions on the control of the two houses of Congress have much higher probabilities. Analysts uniformly predict that the Republicans will retain control of the House, and Silver places 90 percent odds that the Democrats will control the Senate (or, at worst, result in a tie which would be broken by the sitting vice president, Joe Biden).
The certain, albeit improbable, result of such an election would be Romney as president and Joe Biden as vice president. "Oy vey!" Americans nationwide respond. How did we ever get here? At which the history of Thomas Jefferson's and Aaron Burr's 1800 tie is trotted out. To which the universal response is "And this was the cure?"
Suppose there is a 50-50 tie in the Senate. Joe Biden sees that other problems, some manifest and some not, in America's electoral roulette might never be fixed if he doesn't seize the moment. Armed with exclusive power to determine the next vice president, Biden dictates the terms of a grand deal. In exchange for his vote for Ryan, the Congress passes, and sends to the states for ratification, a complete rewrite of the presidential election system:
• 1. The Congress, not the states, will administer all elections to federal office by an independent, nonpartisan commission (ending the present collection of inconsistent and arbitrary systems).
• 2. The now 539 (no more ties) electoral votes will be allocated one each to the winner of each congressional district, with two each allocated statewide to the winner of each of the 50 statewide votes (no more winner-take-all with the heightened chance of one candidate winning the popular vote but losing the electoral vote, and no more "swing" states.
• 3. An independent, nonpartisan commission will pick a uniform ballot across the country and a single balloting machine, with paper confirmation of all electronic voting (no more "butterfly" ballots or hanging chads).
• 4. Photo IDs will be required to vote, but no person will be denied the right to vote because of any prior criminal conviction (simultaneously increasing the integrity of the vote while expanding those eligible to vote).
• 5. Every voting precinct will be open 24/7 for 14 straight days preceding the second Tuesday in November and accept registrations on the day of voting (increasing citizen participation based on increased convenience and opportunity).
• 6. Voters will have the opportunity on all ballots to indicate a second pick, and providing for a run off among the top two candidates if no candidate receives more than 50 percent of the popular vote (enhancing the viability of third party candidates as bona fide candidates and eliminating their power as a spoiler),
• 7. Any debates involving candidates for president shall include at least four candidates from separate parties, as determined by an independent, nonpartisan commission (eliminating the unjustifiable lock on debates by the current two major parties).
• 8. Finally, that every company holding a federal license to broadcast (TV or radio) shall extend, on each day of the 12 months preceding a presidential election, free advertising to all bona fide candidates for president, pursuant to regulations administered by the independent, nonpartisan election commission (effectively minimizing the need for buckets of money from corporations, unions and other self-interested parties whose wallets dwarf the resources of the average American citizen compelled to pay taxes and send their children to die in war).
Joe, ever the politician, knows he can't simply take everybody's word that the constitutional amendment will pass, so to ensure its passage, he votes for himself as vice president but agrees, upon passage of the amendment, to resign and allow Romney to nominate Ryan pursuant to existing statutes providing for filling a vacancy in the vice presidency.
In other words, Joe says, pass and ratify the amendment or I'll stick around. In exchange for his contributions to future American elections, Joe Biden earns a plenary indulgence for all prior offenses, large and small, against good taste and common decency, and henceforth will be remembered solely as the author of what history will forever call the "Biden Amendment."
DePaulo is a lawyer in Charleston.