A mere 8 years ago the United States Supreme Court ended the most controversial Presidential election in American history with their 5-4 decision in Bush v. Gore
Any good civics student should know that in any Presidential election there are 538 electoral votes up for grabs. Get to 270 and you punch your ticket to the White House. Any good math student should see that 538 is an even-number, thus allowing for the remote chance that a Presidential election could end in a 269-269 tie. But is it really that remote of a chance?
Here is a frighteningly realistic scenario for 2008 (probabilities are my estimates):
1. Start with the 2004 electoral map
2. Flip Colorado (Bush won by 5% four years ago) from Republican to Democrat (likelihood of 55%)
3. Flip Iowa (Bush won by 1%) from Republican to Democrat (likelihood of 55%)
4. Flip New Hampshire (Kerry won by 1%) from Democrat to Republican (likelihood of 45%)
5. Flip EITHER Nevada (Bush won by 2%) OR New Mexico (Bush won by 1%) from republican to Democrat. (likelihood of 60%)

Thus, a cursory calculation reveals that there is roughly an 8% chance of the “Nightmare Scenario” occurring in this election. Why a “Nightmare Scenario?” Because under the terms of the 12th Amendment in the event of an electoral tie the winner of a Presidential election is chosen by the U.S. House of Representatives. But it’s not a straight vote by the member of the House (which Obama would win in a walk). Each state receives 1 vote, it’s up to the state’s delegation to determine how that vote is cast. One assumes that every Republican member would vote for McCain and every Democrat member would vote for Obama.
Currently, of the 50 House delegations: 26 are majority Republican, 21 are majority Democrat and 3 states would be tied (I have no earthly idea how those states would resolve themselves). But keep in mind that this is the count for the 110th Congress, but it would be the 111th Congress that would decide the winner of the election. Democrats are expected to gain anywhere from 5 to 15 seats in the Congressional elections this November. But how would these potential Democratic net gains affect the make-up of each state’s Congressional delegation?
I am by no means a Congressional experts so I am going to rip off the projections of Dave Wasserman and the Cook Political Report. There are numerous House delegations where it’s virtually impossible for control to switch from one party to the other. Cook Report lists 20 toss up races — 14 in districts that are currently Republican and the other 6 in current Democrat districts. There are only a handful that have the ability to sway control of a Congressional delegation:
Kansas (currently 2D 2R) — toss up race in a current Democrat district
Alaska (currently 0D 1R) — seat currently held by a Republican (rated toss up)
Arizona (currently 4R 4D) — toss up race in a current Republican district
Mississippi (currently 2R 2D) — toss up race in a current Republican district
New Mexico (currently 2R 1D) — toss up race in a current Republican district
Ohio (currently 11R 7D) two toss up races both in current Republican districts
I’ll let you project your own scenarios but it isn’t out of the realm of possibility that after the November elections there could be 24 “Republican delegations”, 24 “Democrat delegations”, and 2 split. Amazingly, the Constitution does not specify what would happen in the event of a 25-25 tie vote in the House. The Constitution only states that “And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President”