Joe Biden might well be the next President of the United States, without Obama being removed due to death, impeachment, or disability to perform constitutionally. Or Mitt Romney could be President with Biden as Vice President – these are still open possibilities in this crazy 2012 election. And I’m not talking about some mass write-in campaign or some conspiracy cooked up by Biden and Romney- let’s be at least a little realistic. They have the 12th amendment instead, the text of which states that in the event of neither candidate achieving a majority of the electoral vote, the winners will be determined in Congress. Several pollsters and commentators have already acknowledged the possibility of a 269-269 tie in the election, with Nate Silver at fivethirtyeight giving this outcome a 0.6% chance. So while not entirely likely, still plausible. If this happens then the 12th amendment dictates that the President will be chosen by the House of Representatives with the delegates of each state putting forth a single vote (to get 50 altogether). It further states that the Senate will chose the Vice President. Looking at the current breakdown of the House and Senate it looks like the House would vote for Romney and the Senate would vote for Biden. That in itself is really bizarre, but it could get even weirder.
If there is a tie, there’s no way that there’s not going to be a shitload of lawsuits and congressional wrangling. Every state that’s even remotely close will have a recount and try to get votes thrown out. In the meantime the Senate will probably fairly calmly choose Biden for a couple reasons. First, they are mostly Dems and they are looking at either holding the majority or expanding on it at this point. Second, Biden was a Senator, and a fairly well-respected one amongst his colleagues. The Senate would favor him over Paul Ryan on more than just politics. In the House things won’t go nearly as smoothly. Closely-split states like New Jersey and Iowa will see fighting within the state representation for who their vote will go to. Furthermore, the House can choose between the top three Presidential candidates and the 12th amendment does not explicitly state whether the third candidate need receive any electoral votes in the first place. Therefore, the House may be further split along a libertarian line and perhaps even see several states pushing the third party candidate. It seems highly unlikely that they could come to a quick resolution on the issue. And here’s where things really get tricky.
If the House cannot reach a decision by January 20th then the Vice President, chosen by the Senate, will become President. The 20th amendment also states that once this happens Congress shall pass legislation as to what to do next. That almost seems paradoxical in itself. How could Congress pass legislation to resolve an issue that they haven’t been able to resolve already? In this sense Biden would remain the President. At this point you might ask why Congress would legitimize Biden but not Romney or Obama. The outcome for Biden might be more likely as he is a less polarizing figure than either Obama or Romney, and if elected early, could be an acceptable outcome or something people could settle for. If the Senate prolongs the battle like the House then a Biden Presidency could further be used as a bargaining chip for the Republicans who vehemently hate Obama. Furthermore, a Biden Presidency may just be in the best interest in order to allow Congress to re-write the law without waiting for a Constitutional amendment as that’s what the 20th amendment basically dictates.
What are the chances of this scenario? Well if Silver’s right, an electoral tie is at 0.6%, but if that happens then I think what I described above has a far greater chance of happening than that, maybe 33%. So based on my bullshitting that’s a 0.2% chance at a Biden presidency and probably an equal chance of a Romney/Biden ticket, and sure that’s improbable, but still a better chance than Ron Paul.