Now turn to the other possibility: There are no faithless electors, and the 269-269 result is certified. The House then begins to vote—choosing only among the top three electoral vote-getters. (The members could not choose Paul Ryan or Mike Pence, unless at least one elector had voted for one of them, and the Congress accepted that “faithless” vote). As of now, 28 House delegations are controlled by the GOP, but remember, it’s the new House that votes, and it’s entirely possible that neither party will command a majority of delegations. So the House just keeps on voting.
Meanwhile, the Senate chooses the new vice president from the top two finishers with each senator casting a vote. Imagine the new Senate is 51-49 Democrat. If party lines hold, they will choose Tim Kaine (yes, he can vote for himself). If the House remains deadlocked until January 20—back in 1800, it took 36 ballots before Thomas Jefferson prevailed over Aaron Burr—then Kaine would serve as acting president until the House finally picked the new chief executive. Could we wind up with Trump as president and Kaine as vice president? Common sense says “no,” but the Constitution says: “could be.”
All of this would be taking place in a political climate as noxious as any in memory. One saving grace of the 2000 battle was that America was a hotbed of rest: The economy was booming, the nation was at peace, and polarization was far less dominant than now. Most of the country seemed to be saying, “Hey, Christmas is coming, the NFL is in full swing, how about figuring out who the president is.”
Today, by contrast, the competition seems almost Manichean; half the country is already convinced that the candidate they oppose is not just wrong, but the embodiment of evil.
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