Summary
The 12th Amendment to the Constitution requires that candidates for President and Vice President receive a majority of electoral votes (currently 270 or more of a total of 538) to be elected. If no candidate receives a majority, the President is elected by the House of Representatives (which occurred once, in 1825), and the Vice President is elected by the Senate (which also occurred once, in 1837). This process is known as contingent election.
The 12th Amendment prescribes some contingent election procedures for the President: the President is elected from among the three candidates who received the most electoral votes; each state casts a single vote for President; a majority (26 or more) state votes is required to elect a President; the House must vote “immediately” to the exclusion of all other business, and by secret paper ballot. In cases where a state has only one Representative, that Member would decide the state vote. For other procedures, precedents exist from the contingent election rules for 1825, as drawn up by a select committee established for that purpose. In 1825, the House decided that a majority of votes of Representatives in each state delegation was required to cast the state vote for a particular candidate, or the state vote would registered as “divided” and not credited to any candidate. These decisions reached in 1825 would be precedential, but not binding, in future contingent elections.
The Senate elects the Vice President under contingent election procedures. It chooses from among the two candidates who received the most electoral votes, with each Senator casting a single vote. A majority of the whole Senate, (51 or more), is necessary to elect. Precedent suggests that, unlike the House, the Senate would choose the Vice President by voice vote.
The District of Columbia does not participate in contingent election of either the President or Vice President.
Contingent election would be conducted by the newly elected Congress immediately following the January 6 joint electoral vote count session. If the House is unable to elect a President by January 20 (when the new presidential and vice presidential terms begin), the Vice President-elect serves as Acting President until the impasse is resolved. If the Senate is unable to elect a Vice President by January 20, then the Speaker of the House serves as Acting President.
In the 108th Congress, Representative Brad Sherman introduced H.J.Res. 113, a proposed constitutional amendment that would revise voting procedures for President in a contingent election. Under the proposed amendment, Representatives would cast votes on an individual basis; the candidate who received the greatest number of votes, provided it was a majority of votes cast, would be elected President. The resolution was referred to the House Committee on the Judiciary, which took no further action before the House adjourned.
This report will be updated if events warrant.
