Could Electoral College Tie in 2012 Lead to Obama Victory?

Could Electoral College Tie in 2012 Lead to Obama Victory?


With the recent CNN report that the Electoral College could be tied after the November election, could the Obamacare ruling show a hint to how Supreme Court intervention in November would impact who’s president in 2013?

Ironically, just a few months ago, more conservatives probably felt pretty darn good about the possibility of the 2012 presidential election coming down to the Supreme Court. With the 5-4 split between conservatives and liberals on the nation’s highest Court, there once was the feeling that if the Court had to play a role in the outcome of the national election akin to the circumstances surrounding Bush v. Gore, Republicans would have the upper hand – and, perhaps, the presidency starting in 2013.

Likely, conservatives don’t feel so confident about that now. Moreso, they are probably dutifully aware that anything resembling a close race probably looks like a forecast for a narrow Obama victory in the fall.

Thank the Affordable Care Act for that shift in sentiments.

Although the feelings of betrayal and mistrust for Chief Justice John Roberts (and, indirectly, President George W. Bush) have not been on high display as they were during the immediate aftermath of the ACA ruling earlier this summer, thoughts on how the Court could play a detrimental for Republicans in the presidential election will simmer to a slow boil as the summer finishes up.

The positive impact that upholding the controversial law has had on President Obama’s re-election momentum has already been seen in some polls, with the president up by as many as 6 points despite bad jobs numbers and low GDP growth. The looming possibility of some court case being kicked up to the Supreme Court – heightened by the notion that the Electoral College could actually deadlock in an election filled with negative campaigning against Romney and dissatisfaction with the economy over the past 4 years – seems to work in President Obama’s favor at this point as both incumbent candidate and ACA victor.

The apparent loss of conservative advantage on the Supreme Court by way of recent rulings including the Obamacare decision could continue through the rest of the year. Should an election controversy play out, the disadvantage is only a symptom of the overall problem that conservatives are facing as we move towards the conventions. Every advantage that Republicans felt that they might have had going into November 2012 – whether it was a bad economy, controversial flip-flops of positions by President Obama, or the build-up to big Supreme Court decisions this summer – seems to have fizzled out without the blow to the Obama campaign that conservatives expected.

Although some of this could be attributed to classic campaign processes or some flubs by the Republican nominee, some of it also must be attributed to the momentum lost by conservatives when both the immigration case between Arizona and the Department of Justice and the Obamacare case rulings failed to have provide the stinging losses for the Obama Administration some had predicted in the spring. Despite the controversies of Obama-led legal maneuvers by this Administration, the conservative-leaning court has yet to affirm through rulings the inferences of Obama-led socialism with some of its high-profile decisions. Because of this, if there is a close race that comes down to the wire – and perhaps the Supreme Court – later this year, conservatives cannot feel as cozy about the outcome as a result of how 2012 has played out so far with the Roberts-led court. Previous wins during 2012 in front of the Supreme Court could make it more likely that representatives of President Obama would continue that winning trend should the election come down to a legal challenge. That makes what was considered a conservative advantage in 2000 a toss-up at best for conservatives – if necessary – in 2012.

The message for conservatives this fall is this: with a bad economy and inconsistencies in Mr. Obama’s presidential record in tow, Republicans must ensure that any defeat of President Obama in November is one that is decisive in the Electoral College. Anything less that sparks a controversy could lead to a Bush Redux – and lead to a second Obama term if the Supreme Court’s 2012 leanings are any indication.

LENNY MCALLISTER is a senior contributor to Politic 365 featured on outlets including CNN Newsroom, CNN’s “Early Start”, Current TV “The Young Turks”, and XM Radio. His new book, “Spoken Thoughts of an Amalgamated Advocate in Today’s America” is now available electronically on Kindle and in paperback on . Catch Lenny’s “The McAllister Minute” on The American Urban Radio Network this week and other latest via the new website.


  1. The Supreme Court has no direct role in the selection of President if no one attains a majority of the Electoral College vote. The 12th Amendment is very clear that if no person has a majority of the whole number of electors appointed (yes, that includes a tie situation because no one would have a majority), then the election of the President is decided by the (incoming) House of Representatives using a special procedure where every state delegation in the House gets only one vote. The election of Vice President in the case of no ticket getting a majority is decided by the (incoming) Senate. This procedure was followed in 1824 for the election of John Quincy Adams. The Supreme Court is not directly involved. The Constitution clearly throws the decision to the Congress when no one gets a majority.

  2. The other comment already said this but this article really needs to be taken down. The author doesn't understand the relevant laws or how the system works. The supreme court would not be directly called in on this one. It's hard to see how they'd be called in at all. It's almost like the author doesn't get that what happened in 2000 was a legal issue not a political one. The supreme court does not and can not decide elections for political reasons, and the process for dealing with this situation is written in plain English in the constitution. No one would even challenge it if this happened. In the event of a tie house delegations vote for president and the senate votes for vice president. The court is not involved in any way. The only possibility I can see is if someone succeeds in getting an elector to switch his or her vote. Obviously both sides will try, but I'm doubtful they'd succeed. If they did maybe someone would do a cursory challenge to get that vote thrown out. Good luck on that one, the constitution is pretty clear that if the state doesn't forbid it, electors can change their mind all they want. Should be an easy 9-0 decision, but if this article represents the medias understanding of the law, perhaps they will have to pressure the court to issue a unanimous "wtf are you talking about" decision. Anyways, please pull this article, it is embarrassing.

  3. No. That wasn't the point of the article. The point of the article is that, much like 2000, if there is a close election and a question with votes (such as was the case in 2000 and could be the case with Voter ID laws debates throughout the nation), the courts could come into play. With that said, if that happened, would the latest from the Supreme Court indicate what the overall ruling could be from the Court or if the Court would have a political leaning (as it did in 2000.) It's not to say that the SC would be selecting the president. The point was not to focus on if there would be a tie in the election. The focus was that with a tight election, there could be a greater chance of the courts getting involved one way or another.

    For the record, I DO know that the Supreme Court does not select the winner in event of a tie – geez 🙂 At the same time, you couldn't tell a lot of Americans that after the Supreme Court decision re: Florida in 2000, right?

    Have a great day!

  4. In the case of a tie in the EC, the next House of Representatives votes for President. In 2000, the SCOTUS' preemption of a proper recount of votes in Florida effectively awarded the presidency to G.W. Bush as the state's election results as of Election Day were allowed to stand. Recount or no, there was no 'tie' in 2000 to be broken.

    You're supposed to know this, Lenny.

    • Again, read both my article and catch the point of the article. It's not about if there's a tie. The point of illustrating the tie was that if the election is this close, then the possibility of some lawsuit coming to the Supreme Court over something (e.g., voter ID, valid ballots, etc.) could arise. Conservatives thought that a 5-4 split with the Supreme Court favored them on big issues in 2012, but now, they probably aren't as confident in that fact. Therefore, if a election-related issue went to the SC, conservatives might not feel as confident about winning there if the election were riding on it (as was the case in 2000.)

      • The point is you have no point. The title of your op-ed starts, "Could Electoral College *Tie* [emphasis mine]…".

        Besides, the 2004 presidential election was close and voting irregularities were cited, namely in OH. But the results weren't so close as to qualify a recount under law (as was the case in FL in 2000) where one candidate or the other could challenge with a lawsuit — as did G.W. Bush.