Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis

Summary

The 12th Amendment to the Constitution provides backup, or standby, procedures by which the House of Representatives would elect the President, and the Senate the Vice President, in the event no candidate for these offices wins a majority of electoral votes. Although this procedure, known as contingent election, has been implemented only once for each office since the amendment’s ratification, the failure to win an electoral college majority is a possible outcome in any presidential election that is closely contested by two major candidates, or which includes one or more additional major third-party or independent candidacies. Such a development would require Congress to consider and discharge functions of great constitutional significance, which could be complicated by the protracted and contentious political struggle that might stem from an electoral college deadlock. This report provides an examination of constitutional requirements and historical precedents associated with contingent election. It also identifies and evaluates contemporary issues that might emerge in the modern context.

The 12th Amendment, ratified in 1804, provides that the House of Representatives will elect the President, and the Senate the Vice President, if no candidate receives a majority of electoral votes (currently, 270 or more of 538). Since then, each chamber has performed this function once: the House in 1825, and the Senate in 1837. The amendment requires that the President be elected from among the three candidates who received the most electoral votes; that each state casts a single vote for President; that a majority of state votes (currently 26 or more) is required to elect; and the House must vote “immediately” and “by ballot.” Additional precedents exist from 1825, but they would not be binding on the House in a contemporary contingent election. The Senate elects the Vice President in a contingent election, choosing one of the two candidates who received the most electoral votes cast. Each Senator casts a single vote, and a majority of the whole Senate (51 or more) is necessary to elect. The District of Columbia, which is not a state, would not participate in contingent election, despite the fact that it casts three electoral votes.

Contingent election would be conducted by a newly elected Congress, immediately following the joint session that counts and certifies electoral votes. This session is set by law for January 6, but is occasionally rescheduled. If the House is unable to elect a President by January 20, inauguration day, the Vice President-elect acts as President until the impasse is resolved. If the Senate is similarly deadlocked, then the Presidential Succession Act applies, and some other official would act as President until a President or Vice President qualifies.

Two relevant constitutional amendments were proposed in the 110th Congress: H.J.Res. 73 (Representative Brad Sherman), and H.J.Res. 75 (Representative Virgil H. Goode, Jr.). Both proposed to change the voting formula for President in a contingent election: instead of each state casting a single vote, each Representative would do so. Both bills were referred to the House Committee on the Judiciary, but no further action was taken. No similar legislation has been introduced to date in the 111th Congress. This report will be updated as events warrant.