Let’s entertain a bleak electoral scenario. Following months of bitter contest between the nation’s widely unpopular first female vice president and her brash, demagogic Republican rival, and after a torturous recount in the state of Nevada, a series of legal challenges, and accusations of electoral fraud, manipulation, and malpractice, the Electoral College meets and neither candidate wins a majority of 270 electoral votes or more, deadlocking at 269-269.

This is not (yet) a histrionic account of the 2024 election, but the outcome of the presidential election in Armando Iannucci’s political satire Veep. The show’s fourth and fifth seasons in 2015 and 2016 charted a now eerily prescient course through the mechanisms of a United States presidential election gone badly wrong, as the country’s arcane constitutional structure transformed a relatively ordinary election into a constitutional crisis.

That a national election could even be tied is an odd consequence of the United States’ idiosyncratic mode of selecting the president, but it raises an important question: what actually happens if there’s a tie? Who gets to be president if no one wins? According to some forecasts, it’s a situation Americans might have to face sooner rather than later.

The answer, barring rogue electors swinging behind one candidate or the other, is a complicated process called a ‘contingent election’, by which the House of Representatives selects the president and the Senate chooses the vice president. Under the 12^th Amendment to the Constitution (adopted in 1804 and modifying the original election procedure), should no one win a majority of electors, the duty of choosing the new president will fall to the House, voting ‘immediately, by ballot’, with two thirds of members required for a quorum. Although originally conducted by the outgoing House under the Constitution and the 12^th Amendment, since the passage of the 20^th Amendment in 1933, the duty of selecting the president in a contingent election has fallen to the incoming class of representatives, although the mechanism has not been used since then.

Unlike in ordinary votes in the House, in a contingent election members vote by state rather than as individuals, with a majority of states needed to carry the election. By a rule adopted in the House, in the contingent elections of 1800 and 1824 any state whose own delegation ‘deadlocked’ with no majority would be taken to be non-voting. In the past, the House conducted these votes in a secret closed session, though this, too, is only by convention and not a constitutional principle.

This deceptively simple system obscures the chaos and danger that the contingent election process has historically, and may again, inflict upon the American constitutional system. In 1800, for example, when a contingent election was forced by a tied presidential election between the Republican candidate Thomas Jefferson and his running mate Aaron Burr (conducted under slightly different rules), it nearly ended in revolution or civil war. When the prospect arose of outgoing President John Adams’ Federalist Party either selecting Burr for president or refusing to select a president at all and imposing a Federalist ‘acting president’ by legislative fiat, the Republican governors of Pennsylvania and Virginia mobilised their state militias to seize the capitol, with the Federalist governors of the New England states threatening to respond in kind.

Although prudent constitutional statesmanship prevented this slide into civil strife, the process was chaotic enough that the process of electing the president was heavily amended in 1804, removing a system which the great American constitutional theorist Bruce Ackerman has dubbed ‘The Failure of the Founding Fathers’.

Yet this change did not solve the potential for crisis. In 1824, for example, a four-way election between John Quincy Adams, Andrew Jackson, William Crawford and Henry Clay went to the House, with Adams eventually selected as president even though Jackson had won both the popular vote and that of the Electoral College. This result, achieved after what New York Congressman Stephen Van Rensselaer condemned as a ‘long agony’, was facilitated by a deal between Adams and Clay, in which, their opponents claimed, Adams had offered to name Clay secretary of state in exchange for securing his support.

Far from fortifying the constitution after a contentious election, in this case the contingent election process cast suspicion on the Adams administration, with Jackson and his supporters accusing Adams of subverting democracy through a ‘corrupt bargain’, calling into question the legitimacy of a peaceful and legal presidential transition.

Two centuries later, the prospect of a contingent election is similarly unsettling. The first and simplest reason for this is the potential for extreme disproportionality: because members of the House would vote for president by state rather than individually, it is possible for members of Congress representing a minority of voters in small states to carry the election for their candidate, contrary to the result of the popular vote in both the presidential and congressional elections. As Bruce Ackerman has argued, this federalised method of voting, while sensible in the Founders’ nonpartisan vision of a geographically divided federal republic may prove wholly unsuited for a modern, nationalised, and hyper-partisan political environment.

The second reason is more complicated and relates to the worrying possibility that a contingent election in the House might itself fail to select a president. This is not as implausible an outcome as it might seem; a simple majority of state delegations is needed to win the contingent election, of which the Republicans currently control 26 to 22 for the Democrats and two split delegations, as shown by analysis conducted by the Center for Politics.

In theory, therefore, the Republicans have the edge, but the loss of a single state delegation in a close election would deprive either side of the majority. In that situation, such a compromise in favour of either Donald Trump or Kamala Harris seems unlikely. The resulting deadlock would, therefore, mean that no president would be selected.

Should this happen, both the 12^th and 20^th Amendments establish a theoretically simple solution, in which the vice president will ‘act as President’ until such a time as a new president is selected, at the next national election or, possibly, Congress votes again. This is what occurs in Veep, with Selina Meyer’s running mate Tom James narrowly defeated by Republican nominee Laura Montez in an ineptly managed contingent election for vice president.

This process itself is not guaranteed to produce a vice president-elect. The Senate is currently split 50-50 between the two parties, and neither the Constitution nor the amendments establish whether or not the vice president may break a tie in a vote in the Senate – as Harris has done a number of times in her capacity as president of the Senate. In the first and only contingent election for a vice president, conducted in 1837, the outgoing Vice President Martin van Buren did not participate. The Senate might therefore face a deadlock, too, leaving the vice presidency empty and providing no one to act as President.

Should such circumstances arise, the 20^th Amendment establishes that Congress may choose an acting president, or create a rule by which they should be chosen automatically, until a president or vice present can be selected. In 1947, Congress presumed to take up this task, appending a process for filling a vacant presidency after an election to the new Presidential Succession Act, according to which the president pro-tempore of the Senate – typically the longest-serving member of the chamber – would fill the vacancy as ‘acting president’ until such a time as a president or vice president had been selected. In the absence of a president pro-tempore, the role would be taken by the speaker of the House of Representatives, and so on down the line of succession. The problem, then, seems to have been solved.

Not quite. Further issue arises from the questionable constitutionality of the 1947 act, which, as the legal scholars Akhil and Vikram Amar have suggested, in their 1995 paper ‘Is the Presidential Succession Law Constitutional?’, members of the legislature may not meet the definition of an ‘officer’ and may, therefore, be ineligible to accede to the office of president under the constitution’s existing succession clause (Article II, Section 1). The president pro-tempore and speaker may likewise be ineligible for the line of succession under the ‘Incompatibility Clause’ (Article I, Section 2, Clause 2), which bars simultaneous service in the executive and legislative branches.

Should this nightmare scenario arise, the selection of a president may be dragged out further by a legal challenge to the authority of the acting president, in which the Supreme Court could throw out part or all of the Succession Act. In the former case, the president pro-tempore and speaker might be excluded from the succession, in which case Secretary of State Anthony Blinken would become acting president, placing a figure in the office, potentially for four years, who had never received a single vote.

The other option would be for the act itself to be replaced by Congress, with a new piece of legislation that might simply name an individual acting president directly, as supporters of then Secretary of State John Marshall (and perhaps the man himself) proposed in 1800. In that case, voting in the House would be by member rather than by state and could seem like a deliberate subversion of the existing contingent election process, potentially allowing one party to impose a president on the nation – perhaps their existing candidate. More likely, however, is that a deadlocked Senate would prevent a new acting president from being chosen, thrusting an individual who had won no votes into the White House. Worse still, however, no compromise might mean no president at all.

The above is a doomsday scenario, of course. But the fact that the existing constitutional process for selecting the president in the event of a tied Electoral College allows for it should worry observers of American constitutional politics. What makes any of the scenarios described above more troubling still, however, is the willingness of some American politicians to expose the constitution to this major systemic risk.

In the period following the 2020 election, for example, attempts by Republicans to throw out a number of states’ electors may have been intended to trigger a contingent election in the House, in which Republicans then controlled a majority of state delegations. Esquire has recently suggested that Donald Trump’s invocation of a ‘little secret’ shared between himself and Speaker of the House Mike Johnson may have the same aim.

Unlikely as it may be, if such a strategy were attempted again it could open the door to a messy, divisive, and potentially disastrous contingent election process. Few nations, and fewer constitutions, could withstand such turbulence, and it seems hard to count the United States and her Constitution among those which could. To take Marx’s cliché, under such circumstances, what played out as farce in Veep in 2016 might end as tragedy in 2024.