Tie-breaker: Supreme Court wouldn’t determine the winner

The polls have see-sawed in the presidential election. First, Sen. John Kerry seemed to have an edge. Now the polls indicate that President Bush has caught Kerry and surpassed him by a small margin.

The polls may or may not be accurate, but this much seems certain: At the moment, whoever is ahead, it’s a tight race.

That being true, let’s consider what might happen if the election ends in a tie.

That is possible, and here is why:

The president is elected not by popular vote, but by the states. Each state gets a certain number of electoral votes to cast for the candidate that its voters prefer, as determined by the general election.

The number of each state’s electoral votes is based on the state’s population, because it is the equivalent of the number of the state’s U.S. representatives and U.S. senators. North Carolina, for example, has 13 House members and its two senators, so it gets 15 electoral votes.

There are 435 House members and 100 senators altogether, which makes 535 electoral votes, an odd number that could not end in a tie. But the District of Columbia, which has no U.S. representatives or senators, gets three electoral votes, making the total 538. Conceivably, then, Bush and Kerry could get 269 electoral votes apiece.

Then what would happen?

Some die-hard Democrats still maintain that the U.S. Supreme Court gave the 2000 election to Bush because of its ruling in the disputed Florida election. That is erroneous.

Bush led Al Gore in Florida, with each candidate needing Florida’s electoral votes to win. Gore’s supporters called for days of recounting and wanted it to continue. The courts were asked to decide whether it could. The Supreme Court eventually ruled that the counting had to stop.

In time, it was determined that the outcome was correct: Bush had carried the state, but by a mere 600 votes.

So the president was legitimately elected.

People who insist that the Supreme Court elected him can relax: If there is a tie between Bush and Kerry, the court is not the tie-breaker. The Constitution gives that function to the House of Representatives. The House would vote and the candidate who got the majority of votes would win.

Since there is an odd number of representatives, 435, there could be no tie there. The election would be over.

Published in Editorials on September 13, 2004 11:24 AM