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Guest Column: What Happens If We Have a Presidential Election and No One Wins?

Guest Column by Martin Frost

Now that Robert Kennedy Jr. is in the race for President running as an independent, it is possible that on election day, no one gets the 270 electoral votes required to win. Let’s say that Biden and Trump each get 260 electoral votes, and Kennedy wins a few states with 18 electoral votes. The total number of electoral votes is 538, and Kennedy’s 18 electoral votes hold both Biden and Trump under the magic number of 270.

That’s why a large number of Kennedy family members took the extraordinary step of holding a press conference to publicly disavow their famous relative and endorse President Biden. They know that while Bobby Kennedy Jr. won’t be elected President, he could put Trump back in office.

How is this possible? It’s because of a fatal flaw in the electoral college system – electoral votes in all but two states are determined winner-take-all. Whoever receives the most votes in each of 48 of our states wins 100 percent of the electoral votes in each of these states. There is no proportional representation. If you lose any of these states with 47 percent of the popular vote and your major opponent gets 49 percent of the popular vote, he gets all of the electoral votes in each such state. Only Maine and Nebraska have different systems.

A third-party candidate like Kennedy could tip the electoral vote in a number of states by receiving as little as four percent of the popular vote. Independent candidate Ross Perot got 19 percent of the popular vote in 1992 but won zero electoral votes because he didn’t carry a single state.

But what happens if a candidate with a famous name like Kennedy actually carries a few small states with a total of 18 electoral votes? Bingo – no one wins.

Under our constitution, the election is then decided by the House of Representatives, with each state having only one vote. Our most populous state, California, gets one vote, but a far smaller state like Wyoming gets one vote too. The election would be decided by the new House, which takes office on January 3rd.

Republicans currently control a majority of state delegations in the House of Representatives. Many of these small state delegations are likely to remain Republican. So Trump could be elected even if the Democrats take back a majority in the House because Republicans would still control a majority of the state delegations.

Because he has a famous name and the general population knows very little about some of his bizarre positions on issues, Bobby Kennedy Jr. could throw the election to Trump either by tipping the popular vote to Trump in some states or by actually carrying some small states.  

The Biden Campaign is right to take the Kennedy campaign seriously, and the Kennedy family is making sure to deliver a direct and simple message – a vote for Bobby Kennedy Jr. is a vote for Trump.

Former Congressman Martin Frost (D-Texas, 1979-2005) was Chairman of the Democratic Congressional Campaign Committee in 1996 and 1998 and Chairman of the House Democratic Caucus from 1999 to 2002.

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