Determining an election outcome not covered by election law

Suppose that an election scenario comes to pass that election law didn’t account for.

Hypothetical: Let’s say that election law and the Constitution, in a colossal oversight, never addressed the issue of a 269-269 tie in the Electoral College - never mentioned or took that possibility into account. And lo and behold…there’s a 269-269 tie.

If there’s an election scenario comes to pass that election law didn’t account for, what would be a fair and proper way to determine the winner?

“Thunderdome-Two go in, one comes out.”

Many election laws have a final clause about drawing lots to eliminate a tie that can’t be resolved in other ways. In the case of the electoral congress, that election gets thrown to the Congress and they just keep running ballots until someone wins.

I assume that every state’s laws allow for its legislature and/or executive to pass laws to cover situations not otherwise covered in situations like this. At federal level, the Congress could pass laws providing for uncovered situations, but it would be up to the Supreme Court to decide if they violated the Constitution in any way.

In a way, this happened quite a bit in the USA until 1967; whenever a President died and the Vice-President took over, there was no provision for choosing a new Vice-President, and I don’t think they ever did (Lyndon Johnson did not have one until Hubert Humphrey was elected in 1964). The 25th Amendment, ratified in 1967, provides for the spot to be filled.

No problem with an electoral tie. The House of Representatives then gets to elect the President from the three candidates with the most electoral votes, and they keep voting until someone is elected.

As for some other scenarios. . .

In 2008, it took something like 7 months to finally resolve the Franken-Coleman senatorial election in Minnesota, but it did eventually get resolved.

The New York City mayoral primary was supposed to take place on September 11, 2001. It was delayed two weeks.

In 2000, Missouri’s Mel Carnahan died too late to be replaced on the ballot for the Senate election. He won, anyway, and the Governor appointed his replacement.

Recall that in 1841 William Henry Harrison died only one month into his term. The office of President had never been vacant before, but John Tyler managed to be accepted as legal successor without causing a palace coup.

And for some absolutely unexpected, bizarre scenario that no one could possibly take into account – like the 2000 presidential vote in Florida – it winds up in the court system.

TLDR: We fake our way through it.

Just this year there was a tie in a race for a Mississippi state legislature seat. Kind of amazing considering there were over 9000 votes cast. They drew straws and the Democrat won.

I noticed that the above election result is not in the Wiki list of close election results. It looks like there’ve been 8 other elections with a tied vote. Most are in Canada (for reasons they explain), but this is the first in the US. Anyone want to add this one to the list?

Also each state delegation can only cast a single vote; so if a given delegation is evenly divided that state must abstain. The Senate chooses the Vice-President with each Senator getting one vote as normal, but it’s limited to the top 2 candidates from the Electoral College.

In Jeffrey Archer’s political thriller First Among Equals, there is a tie in a British parliamentary election. It is decided, consistent with British law, by a coin toss. Using an antique coin, one candidate calls “tails” and wins. He tells the press afterwards, “George III lost America; I wasn’t going to let him lose me this election.”