“In some ways, this latter scenario - however improbable it sounds - is more likely than a McCain victory. What would happen then? Well, the 12th amendment states that if by the fourth of March the House has not agreed on a candidate, the vice-president would become president. And given that Senate Democrats would have long already elevated Joe Biden to the vice-presidency, that could mean a Biden Administration.”

Here is the solution to a deadlock in the House.

The Senate votes to elect Obama as the Vice President. The House remains deadlocked. Obama is then elevated to president, with no VP. He uses the process in the 25th Amendment to nominate Biden, who is easily confirmed by a Democratic Congress.

Problem solved.

That is all.

Only the top two vice-presidential vote-getters in the electoral college vote have their names submitted to the Senate, so Barack Obama could not be VP in the way you describe.

But if the democrats would be afraid of too many deadlocked states, they would probably hold off on the senate vote at first, and then have all senators vote for Obama as Vice-President. Then, after March 4th, when Obama would be sworn in as President, he would nominate Biden for VP under the 25th amendment.

At least for this go-around. We’ll have reallocation after the next census, so the totals may be different next time.

That would be the true nightmare scenario.”

It could also mean a Palin Administration…

Also, thank you dsimon for your comments. So many people don’t “get” our electoral system and you answered quite a few questions that often arise. Including how it would be possible for only a handful (I believe 12 most populated?) states to change everything.

There were only a handful of recounts last time around. Recounts proceed according to law, not because someone sues. Real suits are even rarer, even when the outcome is close (such as the district in FL which was close AND several thousand votes were lost). And the probability that any of those races would matter if the presidency were thrown to the House is even smaller; a disputed race in NY won’t matter because the NY delegation is firmly Democratic.

As far as procedures go, the procedure for resolving an electoral college tie in Congress is quite clear. The actual mechanics are sorted out by each chambers’ rules.

Just because someone may sue doesn’t mean there’s a real case. Is there a realistic scenario where an electoral college tie would result in any suits that we wouldn’t see anyway? I just don’t see how it would add to any additional potential litigation.