D.C./Utah House Additions Will End Electoral Tie Possibility

[ Posted Thursday, February 26th, 2009 – 16:09 UTC ]

The District of Columbia is about to take a big step along the road to political relevance. They appear poised to receive a full vote for their "shadow" member of the United States House of Representatives. In a bargain which harkens back to the Missouri Compromise, Utah will also add a House member at the same time. Much has been said about this story in the past week, but everyone seems to be overlooking one good result which will come from the new arrangement: a tie will never again be possible in the Electoral College, at least not without a third-party candidate picking up at least one elector.

I had fun with this concept, during the 2008 presidential race, where I explored exactly what might happen if we wound up with a perfect 269-269 tie (short answer: it would be messy, but Obama still likely would have won). This will no longer be a worry for the wonktastically-inclined. Because the Electoral College will always be an odd number, barring one small and very temporary loophole.

A quick rundown on the history of Washington, D.C. and their quest for political power is helpfully provided by the Associated Press today. As you can see, the citizens of Washington, D.C. have been all-but-powerless second-class citizens for over 200 years now. And they're not exactly happy about it. Here, for instance, is the current license plate in the District:

DC license plate

Not happy campers, at all. In fact, these campers drive to their campsites in cars that proudly state they are not happy campers.

Ahem. Sorry, that metaphor got a lot bit out of control, didn't it?

But you can see their point. They are citizens, they live within the borders of America, they pay federal taxes, and they've only gotten to vote for the president since 1961. Even this was given grudgingly, cementing their second-class status in the Constitution itself. Here is the text of Section 1 of the Twenty-Third Amendment:

The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state, but in no event more than the least populous state; they shall be in addition to those appointed by the states, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a state; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Did you catch that "in no event more than the least populous state" in there? This means that no matter what the population of the least populous state and the District, they still get the same vote. Say the population of D.C. skyrocketed to the point where, if they were a state, they'd be entitled to two House members -- even if that happened, they would still only get one for the purposes of the Electoral College (technically, they'd get three instead of four, since they'd get the allocation for the Senate as well -- three electoral votes is the minimum for any state).

And now a bill is wending its way through the labyrinth of Congress which would allow D.C. a full voting member of the House. This bill would further cement the second-class nature of D.C.'s representation, it should be noted, by enumerating (something the Amendment didn't even do) what this means [if this link doesn't work, search for S.160 or SR.160):

This section shall apply with respect to the District of Columbia in the same manner as this section applies to a State, except that the District of Columbia may not receive more than one Member under any reapportionment of Members.

Meaning that even if the least populous state was entitled to two House members (to be honest, I'm not even sure this is numerically possible), and D.C. had more people, it would still only get one vote. It is impossible not to call this second-class status -- without even getting into the statehood debate, or whether they should get a voting senator or two as well.

But putting all that aside, the citizens of the District will likely accept this half-loaf as better than what they've got now, which is no vote whatsoever in either house of Congress. Beggars can't be too choosy, especially since it has taken this long to even wring this much representation out of Congress (although, to be fair, in 1978 Congress did pass a D.C. statehood Constitutional Amendment, but unsurprisingly it was never ratified by enough states).

But the Missouri Compromise nature of the bill is the interesting part, at least when considering Electoral College ramifications. Conveniently, after the 2000 census, the state that was next in line to be allocated another House member was Utah. I say "conveniently," because while the District is the biggest bastion of Democrats in the entire country (D.C. voted 92.5% for Barack Obama versus 6.5% for McCain, the largest margin of victory in the entire country), Utah has been pretty solidly Republican since before it became a state. Hence, the compromise. Republicans had always balked at adding the District, because it would add a guaranteed Democratic vote for the foreseeable future, which would lessen their power marginally. This way, both sides get a reliable vote, preserving the balance of power. While this sounds like crass horsetrading, this is the way such politically-sensitive things get done in Washington, and as such, not a bad compromise overall. Which is why I say "conveniently." If California or Massachusetts had been next in line for a House seat, this deal would not have been possible.

The bill has made it out of the Senate committee, and the full Senate is wrangling over it. So far, it has survived at least one cloture vote (62-34), meaning its chances for success in the Senate are high. And the House has already passed such a measure previously, so it is assumed it will pass the House easily as well. Meaning we are getting very close to changing the overall number of total members of the House of Representatives for the first time in eighty years (1929, right before the 1930 census, was when the number was frozen at 435).

"But Chris," the alert reader says, "how will this change the makeup of the Electoral College, since an even number -- two -- is being added to the total?" Ah, but D.C. already has three seats in the Electoral College, which was the point of the Twenty-Third Amendment. The Electoral College currently has 538 members, apportioned exactly as Congress is: 100 equivalent to the Senate, 435 equivalent to the House, two equivalent to D.C. in the Senate, and one equivalent to D.C. in the House. The only change for D.C. is that the House equivalent will now be the equivalent of a voting member rather than a "shadow" member.

But Utah's new House member will be added. Giving us an Electoral College of 539 -- an odd number. Meaning that the closest presidential race possible for the future would be 270-269. And the knuckle-biting possibility of a tie would disappear forever.

Well, maybe not "forever," but the chance of a tie would diminish to very close to zero, because of the exceptional circumstances which would then be necessary for a tie to happen. With the Electoral College total an even number, all that was required for a tie was that the two candidates win a combination of states which would add up to one. This will no longer be the case.

The first way it could actually happen is if a third-party candidate won at least one electoral vote. But while H. Ross Perot -- the most successful third-party candidate since Teddy Roosevelt -- won 19% of the popular vote, he didn't manage to win a single electoral vote. Making this scenario a remote possibility, at best.

And even if D.C. acquired the holy grail of statehood, it wouldn't change things. It would just give D.C. two votes in the Senate, but the Electoral College number wouldn't change at all. The only possibility of ever having an electoral tie again would be temporary and self-correcting.

We have already had one period in our history when there were actually 437 voting members of the House. From the House's own history page:

The admission of Alaska and Hawaii into the Union as states in 1959 serves as the last example of the addition of new voting Members to the U.S. House of Representatives. Congress temporarily added one new Representative for each state in the 86th and 87th Congresses (1959–1963), bringing the total number of Representatives in the House to 437. In 1963, when the apportionment mandated by the 18th Census (1960) took effect, the total number of Representatives in the House returned to 435 for the 88th Congress (1963–1965).

If another state joined the Union (Puerto Rico, for instance), until reapportionment there would be 438 members of the House -- meaning a tie would again be possible (although the tie would then be 270-270). But this situation would last less than a decade, until the House reshuffled its seats again and brought the total back down to 437.

There is no guarantee that D.C. is going to get a House member, but the chances look better than they ever have right now. There are legitimate questions of constitutionality involved as well, so it will be tied up in the courts for a while even if it does happen (the Constitution uses the word "State" or "States" in several places that may dictate an Amendment is the only way to change things).

But if the District of Columbia and Utah both get a voting House member at the same time, we will likely never have to worry about the presidential race ending up in a perfect tie ever again. And that's an unintended consequence I can live with.


-- Chris Weigant


2 Comments on “D.C./Utah House Additions Will End Electoral Tie Possibility”

  1. [1] 
    fstanley wrote:

    In this instance I think that the Founding Fathers got it wrong when they denied American Citizens the very representation that the War of Independence was fought over. Washington D.C. should become part of Maryland or Virginia and be the Capital of the USA just as any Capital City in any other country or even the state capitals here in the US. I don't see any conflict in allowing D.C. residents to vote for a House Rep. who can then vote in Congress just as state reps vote in the state legislature.

    I do think this will be challenged and go to the Supreme Court. And I agree that an Amendment may be the only way to fix this.


  2. [2] 
    Osborne Ink wrote:

    I have to go a little further and say that it's well past time to expand the House of Representatives. The freeze at 435 has everything to do with apportioning posh office space, I think, and nothing to do with good governance.

Comments for this article are closed.