Election day has come and gone in the US, and in the early hours of Nov. 4—no matter what the candidates are claiming—it’s still impossible to say who will be the US next president.
There are many scenarios open—including contested results—and the US constitution isn’t clear about resolving all of the possible challenges. One unlikely scenario does, however, have an answer: An electoral college tie must be broken by Congress.
This is how it works. There are 538 electoral college seats in the US, which means that in order to win the presidency, a candidate has to get 270. It is possible, however, that when the electoral college meets to cast its votes on the Monday after the second Wednesday of December (this year, that’s Dec. 14), each candidate gets 269.
At that point, according to the 12th amendment, the newly elected House chooses the president among the three leading candidates according to the electoral college vote. The new Senate, meanwhile, gets to pick the vice-president, also among the three leading candidates after the electoral college votes.
In the House vote, members don’t vote as individuals, but as a unit, with one vote for each state delegation. Currently, the overall House majority is Democratic. But in 27 states a majority of delegates are Republican (and in Pennsylvania the delegates are evenly split). Whether an electoral college tie favors Donald Trump or Joe Biden will depend on whether many seats are flipped by the final vote count, and where.
Senators, however, vote individually for the vice-president.
Does that mean president and vice-president could be of different parties? Indeed, it does.
In case neither candidate gets the 26 votes they need to be elected president by inauguration day, then the vice-president elect becomes acting president, while the House tries to agree on a president.
And should there be a tie for the vice-president, too? In that case, the Speaker of the House, who is likely to remain Nancy Pelosi, becomes acting president.