We’re taking a break from the Constitution breakdown this week to address a growing possibility as a result of the midterm elections.
The elections are just two weeks away, and while the fate of the House appears to be a foregone conclusion – the question isn’t whether Democrats will win, the question is by how much – the fate of the Senate is a much more dynamic question. Republicans are now playing the toughest defense they’ve played yet, while all but one of their offensive targets haven’t come online.
Democrats, meanwhile, have the herculean task of flipping four states (net) to take control. While North Carolina is now being written off the GOP, Maine is proving to be a tougher task than expected. That leaves Democrats highly competitive in Alaska, Iowa, Kansas, Ohio, and Texas – all went to Donald Trump (R-FL) by double-digit margins two years ago.
All that unfolds while an Independent candidate is running a strong bid in Nebraska and Democrats have coalesced around two other candidates in some of the nation’s reddest states.
There are multiple ways a tied Senate is the outcome of this election. While we’ve discussed this before, we’ll give the “Civics 101” of the possibility, and explore some more unlikely, yet still conceivable, scenarios.
What is a Tied Senate?
The Senate is considered tied when neither party has an outright majority. The constitutional definition of a “tied Senate” only applies to when any given vote of the Senate is split evenly between the “ayes” and the “nays.”
An election outcome of a tied Senate does not necessarily mean every vote comes down to a tie, although the chances do increase, especially with polarization as a factor.
Article I, Section 3, Clause 4 of the Constitution empowers the Vice President as the President of the Senate. The Vice President’s most crucial role is casting tie-breaking votes; there have only been 309 tie-breaking votes cast by the Vice President in history. The first was cast by John Adams in 1789 and the most recent was cast by Vice President J.D. Vance (R-OH) earlier this year.
Former Vice President Kamala Harris (D-CA) holds the record with 33 tie-breaking votes, followed by John C. Calhoun (1825-1832) with 31. John Adams holds third place with 29 between 1789 and 1797.
Only four times in history has the Senate been “tied” by partisan composition, three as a result of elections and one as a result of rotating vacancies.
In 1881, Democrats and Republicans each held 37 states; each party had one Independent Senator caucusing with them. Then-Vice President Chester A. Arthur (R-NY) cast 3 tie-breaking votes and presided over what was called the “Great Senate Deadlock.” From 1953 to 1954, the Senate was split nine times due to multiple deaths and one resignation. Then-Vice President Richard Nixon (R-CA) cast 8 tie-breakers.
After the 2000 elections, the Senate was divided 50-50 until June, when Vermont Senator Jim Jeffords left the GOP to become an Independent and caucus with the Democrats. It remains the sole instance in history in which an incumbent effectively switching parties flipped control of either the House or Senate. Then-Vice President Dick Cheney (R-WY) cast 8 tie-breaking votes. A power-sharing agreement was negotiated after Jeffords switched parties.
The most recent tied Senate was after the 2020 elections.
To date, 38 different vice presidents have cast tie-breaking votes; 12 have never cast any.
Tie-breaking votes can be especially contentious during Cabinet confirmations. Only two have ever occurred, one for Besty DeVos (R-MI) as Education Secretary in 2017 and the other for Pete Hegseth (R-TN) as Defense Secretary in 2025.
Internal Politics
In a tied or closely divided Senate, Independents and party mavericks have more power than ever. It’s what led to former Senator Joe Manchin (D-WV), arguably the Senate’s most conservative Democrat at the time, becoming dubbed the “most powerful Joe in America” while Biden was in the White House. For Trump, the most notable mavericks include Lisa Murkowski (R-AK), Susan Collins (R-ME), and Rand Paul (R-KY).
That said, as Democrats appear favored to gain Senate seats this cycle, what’s more certain is the Trump agenda will face serious, if not impenetrable, hurdles after this election. Even if the GOP limps off with a 50-50 hold on the Senate (Democrats need 51 seats to take nominal control of the chamber due to Vance’s tie-breaking authority), whipping votes will be the most important job on the Hill come January.
Likeliest Path to a Tied Senate
Assuming Democrats come up short in some of the Republican-held seats and only flip three seats while the GOP flips none, control of the Senate remains with the Republicans.
That pathway effectively guarantees North Carolina flipping blue, and the path of least resistance right now appears to be Maine and Ohio. Democrats in the past have been wrong to count Susan Collins out in Maine, where retail politics goes strong and Collins is the last Republican standing in once one of the reddest states in the country. That Collins is performing better in polling now than she was in 2020 – she went on to win by 9 points that year – gives Democrats pause in putting all their eggs in this basket.
Assuming Maine is out of the picture, Democrats seem to be poised for an upset in Alaska, while the GOP is preparing for the very real possibility that Texas finally flips blue for the first time in decades.
If Democrats only pick up three seats, the most powerful people in the country become Collins (assuming she wins), Murkowski, Paul, and Senator John Fetterman (D-PA). For politicking for 2028, Senators can take advantage of the gridlock to position themselves as the voices of reason either to the parties or to the media and voters, or they can give themselves significant sway in brake-checking legislation. Senators Jon Ossoff (D-GA) – who appears likely to win a second term in November – Rand Paul, Ted Cruz (R-TX), Chris Van Hollen (D-MD), Cory Booker (D-NJ), and Mark Kelly (D-AZ) are indicating or have been speculated to be candidates in 2028 and will likely elevate themselves in the event of a split Senate.
The map above shows what we think is currently the likeliest path to a contested Senate. The highlighted stripes show what seats would have to flip in November to make this possible.
The Independent Question
There are only two Independents in Congress: Vermont’s Bernie Sanders and Maine’s Angus King. Both caucus with the Democrats and don’t present regular surprises in that regard.
For 2026, Independents Dan Osborn in Nebraska, Brian Bengs in South Dakota, and Todd Achilles in Idaho are running spirited campaigns in some of the nation’s reddest states. Osborn almost won in 2024, albeit against a milquetoast opponent and with an unexpected surge at the end of the race. The fundamentals of this year appear to be making it a race, but commentary suggests Osborn’s best chance was in 2024.
However, there’s still a realistic chance he wins. The scenario we call the “Nebraska Nightmare” unfolds with Osborn winning that fourth seat Democrats need to take control. We currently see it as highly unlikely Independents flip Idaho and South Dakota, but we’re testing that scenario for the purpose of this column.
Independent Senators are not required to caucus with a party, and Osborn has repeatedly claimed he would not caucus with either party. He’s pitching an independent “Fulcrum Caucus,” in hopes other Independents win their races this year or that some partisan incumbents have second thoughts next year.
But Independent members of Congress don’t get dutiful committee assignments, seniority, or legislative oversight. The Independent is quickly reminded of requiring a record with which to return to his/her constituents. In that scenario, we assume Osborn would caucus with the Democrats, since they bowed out in 2024 and this year to support his candidacy. Whether he’d be a reliable vote with the Democratic Party is an entirely different question. Osborn already has a significant level of power in this scenario.
If he does not caucus, he is still a factor in a power-sharing agreement that will be facilitated by all 100 members. When Jim Jeffords became a Democrat-caucusing Independent in 2001, Senate leadership brokered a deal that gave both parties equal membership of committees and shared resources, among other deals.
At that point, Osborn effectively becomes the most powerful person in Washington. If Democrats flip three seats, Republicans flip none, and if Osborn wins in Nebraska, he can essentially shut down the Senate by digging in his heels on whatever party deal attempts to be made and he could find unique leverage for the Fulcrum Caucus if the parties don’t budge.
The internal politics there, however, says that the institutional relationships and seniority of some members of the Senate would likely see a bypass, but not before some intense negotiations and chess-playing by party leaders.
Osborn has much more weight to his prerogatives if two or three other Independents win their elections in November. The hegemony of both parties would likely test this nascent coalition’s loyalty and strategy, but the numbers would present an unexpected headache that could significantly delay progress in the Senate.
Since the Constitution says nothing about party organization, only Article I, Section 3, and Article I, Section 5, would apply to how they navigate the disruption: the Vice President casts tie-breaking votes (Section 3), and each chamber of Congress determines the rules of its own proceedings (Section 5). There are no constitutional definitions of party caucuses, a “majority party,” and the process of selecting leaders.
And should the unlikeliest scenario occur – Independents sweep three or more contests in November and neither party has a clear majority – it would be unparalleled in American history.
