To the surprise of many observers, Republican presidential nominee Donald Trump's surge in key battleground states is holding. The most recent polls in RealClearPolitics averages have him leading in three states that President Barack Obama won in 2012: Ohio, Florida and Iowa.
Suppose for a moment that Trump's numbers hold. Even if Trump were to take these three states, and Democratic nominee Hillary Clinton retained the rest of Obama's map, Clinton would win the election with 279 electoral votes to Trump's 259.
Trump could win outright if, additionally, he flipped Pennsylvania or Virginia; or, if he flipped the traditionally blue rust belt states of Wisconsin and Michigan. While there are signs of tightening in Pennsylvania, each of these scenarios is less than probable, as Trump continues to trail by at least three points in these states. What seems relatively more likely, according to the latest polling, is that Trump could flip Nevada and New Hampshire, collectively worth 10 electoral college votes. While flipping Nevada is more probable than flipping New Hampshire - FiveThirtyEight holds the former to be a coin flip but the latter to be about a 37 percent chance - this scenario is more than merely conceivable. Failing this, Trump has roughly the same chance of acquiring 10 more electoral votes by flipping both Maine's 2nd Congressional District and Colorado.
In either scenario, Clinton and Trump would tie 269-269.
What would happen in an Electoral College tie? Under Article II, Section 1, and current federal law, electors cast their votes in December before being submitted to be counted by the newly elected Congress which, by the 20th Amendment, will convene Jan. 3, 2017. In the event of a tie, the newly elected House would immediately convene to choose the president. The most generous forecasts of congressional elections have Democrats netting 10 to 15 seats - well shy of the 30 they would need to take control of the chamber. But party control of the chamber is not sufficient. The party needs to control the majority of the state delegations since it is one state, one vote when the House elects the president.
A tie this year would be only the second in the history of our presidential elections. The first was in the election of 1800, in which Thomas Jefferson and running mate Aaron Burr tied in a mishap that the 12th Amendment sought to correct. In that case, the outgoing party and foes of Jefferson, the Federalists, controlled the House but eventually elected him. But the 20th Amendment prevents a lame duck Congress from selecting the president in cases where no candidate garners a majority.
Currently, Republicans control 33 state delegations, the Democrats control 14, and three are evenly split. Even if Democrats were to win all of those Republican-held congressional seats that University of Virginia's Larry Sabato considers to be toss-up races, this would only succeed in flipping one delegation (Colorado), moving one from split to Democratic (Maine) and tying one (Iowa). In short, a best-case scenario for Democrats would be outright control of 16 state delegations. Therefore, in an Electoral College tie, Trump would very likely be elected president.
Still, it is sometimes forgotten that the Constitution requires the Senate to select the vice president from the top two vote getters. (Since the 12th Amendment, vice presidential nominees have been voted on separate ballots.) This is where things get interesting.
According to the current RealClearPolitics average, the Senate is forecast for the GOP to likely retain two seats that are up for grabs (Marco Rubio in Florida, Charles Grassley in Iowa), while the Democrats are likely to flip two (Ron Johnson in Wisconsin, Mark Kirk in Illinois). Meanwhile, RCP categorizes six races as toss-ups: Indiana, Pennsylvania, Missouri, New Hampshire, North Carolina and Nevada. Of those, the most recent polling indicates Democrats may have the edge in the former three, while Republicans may have the edge in the latter three. This scenario would dovetail with the potentiality for Trump to carry Nevada and New Hampshire. On the other hand, it would involve some degree of split-ticket voting for Trump to win Indiana and Missouri with the GOP Senate candidates losing those races. But the most recent polling indicates this could happen. One could chalk it up to the personal popularity of Democrat Evan Bayh and various particulars of the Missouri race, such as Democrat Jason Kander's successful use of media to gun for incumbent Republican Roy Blunt. It is not an implausible outcome, then, that the Democrats will get a net pickup of four Senate seats, which would deadlock the chamber at 50-50 come Jan. 3.
In short, we may be faced with a situation where members in a neatly divided Senate split their ballots 50-50 between Tim Kaine and Mike Pence for vice president.
What would happen in this scenario?
No one knows for sure. The last and only time the Senate chose the vice president was in 1837, when a majority chose Richard Mentor Johnson (whose political career was built almost entirely on the rumor that he had killed Tecumseh). The 12th Amendment stipulates that "a majority of the whole number [of the Senate] shall be necessary to a choice." For some constitutional scholars, the "whole number" is simply the total number of seated senators, such that a 50-50 tie cannot be broken. Yet, Article I Section 3 empowers the vice president, as president of the Senate, to have a vote when the chamber is "equally divided." Some scholars think this includes ties in vice presidential electoral votes. Hence, another interpretation is that the outgoing vice president is authorized to cast the tie-breaking vote (since the new president and vice president's terms don't begin until Jan. 20).
Could we see a Republican-controlled House elect Donald Trump and outgoing Vice President Joe Biden cast the deciding vote for his Democratic successor, Tim Kaine, in January 2017? Perhaps a Trump-Kaine administration is the stuff of fanciful drama that manifests only in shows like HBO's "Veep" and the dreams (or nightmares) of mad political scientists.
Then again, you have to ask yourself: Didn't a Trump-Pence administration, arguably now at least a 44 percent chance outcome, sound just as far-fetched a year ago?
Dr. Kody Cooper is an assistant professor of political science and public service at the University of Tennessee at Chattanooga.