What happens if the election DOES go to the House?

Just 8 House Republicans could put Hillary in office.

Still image extracted from Voice of America’s footage of Khizr Kahn’s speech at the 2016 DNC

If you’re like me and this guy, you’ve spent at least some part of your life carrying around a pocket copy of the U.S. Constitution. But if you’re like me, most of the times you’ve “read the Constitution,” what you’ve looked at is the Bill of Rights, the part of the document that applies to you and what you might run up against in day-to-day life.

Hence, I’m really solid on whether troops can be quartered in my house without my consent (no, Amendment 3) or whether I can be forced to testify against myself (no, Amendment 5), but I’m shakier on stuff like whether individual states can “grant Letters of Marque and Reprisal” (turns out no, Article I, section 10. This means states can’t commission privateers. There go all my dreams of becoming a state-sanctioned pirate. The Oakland Raiders are probably still OK.)

Enough people have been talking about the Electoral College that you probably know the speil by now: in the unlikely event of an elector revolt in which nobody gets a majority (270 votes), it goes to the House. And the House is Republican, so it goes to Trump.

Not exactly.

I’ll quote from the FAQ at archives.gov, the official website of the U.S. National Archives and Records Administration.

“If no candidate receives a majority of Electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most Electoral votes. Each state delegation has one vote.”

In other words, it will not be a simple roll call of the members of the House. One state, one vote.

You should have expected this, really. The strangeness of U.S. election law is boundless. It’s built on a very old Constitutional foundation set up by men who thought there wouldn’t be political parties; or who thought there would be four political parties, divided regionally, because we wouldn’t have mass media or telecommunications systems, and a horse can only travel so far in an election cycle.

Looking at the 115th Congress, this is how it breaks down if every single Representative votes along party lines and there isn’t a third candidate in consideration. (This would happen if, for instance, a state’s votes were thrown out and it dropped both Hillary and Trump below the 270 threshold, but those votes didn’t go to someone else.) Starred states are ones where a single changed vote could either flip or tie the delegation’s orientation.

  • Alabama: Red Republican (6 R, 1 D)
  • *Alaska: Republican (1 R)
  • *Arizona: Purple Republican (5 R, 4 D)
  • Arkansas: Red Republican (6 R)
  • California: Blue Democrat (14 R, 39 D)
  • *Colorado: Purple Republican (4 R, 3 D)
  • Connecticut: Blue Democrat (5 D)
  • *Delaware: Democrat (1 D)
  • Florida: Republican (16 R, 11 D)
  • Georgia: Red Republican (10 R, 4 D)
  • *Hawaii: Democrat (2 D)
  • *Idaho: Republican (2 R)
  • Illinois: Democrat (7 R, 11 D)
  • Indiana: Red Republican (7 R, 2 D)
  • *Iowa: Republican (3 R, 1 D)
  • Kansas: Red Republican (4 R)
  • Kentucky: Red Republican (5 R, 1 D)
  • Louisiana: Republican (5 R, 1 D)
  • *Maine: Split (1 R, 1 D)
  • Maryland: Blue Democrat (1 R, 7 D)
  • Massachusetts: Blue Democrat (9 D)
  • Michigan: Republican (9 R, 5 D)
  • *Minnesota: Purple Democrat (3 R, 5 D)
  • *Mississippi: Republican (3 R, 1 D)
  • Missouri: Republican (6 R, 2 D)
  • *Montana: Republican (1 R)
  • Nebraska: Republican (3 R)
  • *Nevada: Democrat (1 R, 3 D)
  • *New Hampshire: Democrat (2 D)
  • *New Jersey: Purple Democrat (5 R, 7 D)
  • *New Mexico: Purple Democrat (1 R, 2 D)
  • New York: Blue Democrat (9 R, 18 D)
  • North Carolina: Red Republican (10 R, 3 D)
  • *North Dakota: Republican (1 R)
  • Ohio: Red Republican (12 R, 4 D)
  • Oklahoma: Red Republican (5 R)
  • Oregon: Democrat (1 R, 4 D)
  • Pennsylvania: Red Republican (13 R, 5 D)
  • *Rhode Island: Democrat (2 D)
  • South Carolina: Red Republican (6 R, 1 D)
  • *South Dakota: Republican (1 R)
  • Tennessee: Republican (7 R, 2 D)
  • Texas: Red Republican (25 R, 11 D)
  • Utah: Republican (4 R)
  • *Vermont: Democrat (1 D)
  • Virginia: Republican (7 R, 4 D)
  • Washington: Purple Democrat (6 D, 4 R)
  • West Virginia: Republican (3 R)
  • Wisconsin: Republican (5 R, 3 D)
  • *Wyoming: Republican (1 R)

If everybody votes party lines:

  • Republican: 32
  • Democrat: 17
  • Tied: 1

If we remove starred “swing” states:

  • Republican: 22
  • Democrat: 8
  • Up in the air: 20 (10 Republican-leaning, 1 tied, 9 Democrat-leaning)

Weakening Trump’s position slightly, two of the Republican-delegation states (Colorado and Virginia) and the single tied state (Maine) voted Democrat in the presidential election. (There are no states that voted Republican but have Democratic delegations.) It’s hard to say how those Representatives would vote. As a non-politician, I have never personally had to choose between the opposed interests of my party and my state. I can’t say where my loyalty would lie, or which option I would view as more career-killing. It doesn’t seem like an easy choice.

That said, most of the votes I’ve labeled “up in the air” are presumably not really up in the air, and are people who will definitely vote party line. It certainly wouldn’t be good for Democrats to send it to the House. But my point here is, you can’t just count the 435 members of the House and say Republicans have a 47-seat margin. It doesn’t work that way.

In the unlikely event the House decides the presidency, it’ll really come down to 56 people, about half Democrat and half Republican. And if eight strategic Republicans decided to vote Hillary instead of Trump, Hillary would take office.

That will almost certainly not happen. It will also almost certainly not go to the House.

However, if you’re wargaming, this is what the table looks like: favorable to Trump, but not as favorable as one Representative, one vote. And not as favorable as the current state of the Electoral College. Who knows what would happen if a mass elector revolt introduced a third candidate for consideration, who could (but likely wouldn’t) split the House Republican vote?

Meanwhile, if you want to really lean into the weirdness, you can speculate about the fact that in an Electoral College deadlock, while the House would decide the President, the Senate would pick the VP. And they aren’t obligated to pick a VP from the same party as the President — so we could (but probably wouldn’t) get a Hillary/Pence or Trump/Kaine ticket. Wheeee!