Page:Election of the President and Vice President by Congress.pdf/4

Election of the President and Vice President by Congress: Contingent Election

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The 12^th Amendment in Constitutional History

The 12^th Amendment to the U.S. Constitution was proposed by Congress in 1803, following the constitutional crisis that marred the presidential election of 1801.^[1] State ratifications followed quickly, and the 12^th Amendment was declared to be in effect on September 25, 1804. The amendment’s provisions, which remain in effect, are summarized as follows.

• The electors cast separate ballots for President and Vice President.
• The votes are opened and counted in a joint session of Congress presided over by the President of the Senate (the Vice President or the President pro tempore).
• The person having a majority of electoral votes for each office is elected.
• If no candidate for President gains a majority, then the House votes “immediately, by ballot” for President (contingent election), choosing from among the three candidates who received the most electoral votes.
• A quorum of at least one Representative from two-thirds of the states (34 at present) is necessary for the purposes of contingent election.
• The vote is taken by states, with each state casting a single vote.
• The votes of a majority of states (26 at present) are necessary to elect the President.
• If the House is unable to elect prior to expiration of the presidential term (January 20 since ratification of the 20^th Amendment), then the Vice President, assuming one has been elected, serves as Acting President until a President is chosen.
• If no candidate for Vice President receives a majority of electoral votes, then the Senate elects, choosing between the two candidates receiving the most electoral votes. A quorum of two-thirds of the Senate (67 Members at present) is necessary for the purposes of contingent election of the Vice President. Each Senator casts a single vote. The votes of a majority of the whole Senate (51 or more at present) are necessary to elect the Vice President.

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1. The Constitution’s original provisions (Article II, Section 1) required each elector to cast two undifferentiated votes for President—one each for two preferred candidates. There was no separate electoral vote for Vice President. Failing (or having been unwilling) to anticipate the growth of political parties that would offer unified tickets of a presidential and vice presidential nominee, the Constitutional Convention had not provided distinct votes for the two executive offices. The candidate receiving the most votes was elected President, provided the votes constituted a number equal to a majority of electors, not electoral votes. The runner-up was elected Vice President. In the event of a tie vote, or if no candidate received a vote from a majority of electors, the House of Representatives was to elect the President from among the five candidates receiving the most electoral votes. Again, the runner-up would be Vice President. Voting was by states, with each state casting a single ballot. By 1796, both nascent political parties, the Federalists and Jeffersonians (or Republicans, but not to be confused with the contemporary Republican Party) arranged to have one of their electors withhold his vote for the de facto vice presidential candidate, to prevent a tie, and thus avoid contingent election. The deficiencies of this awkward arrangement became apparent in the election of 1800, when all Jeffersonian electors cast one vote each for presidential candidate Thomas Jefferson and vice presidential candidate Aaron Burr. The failure to cast one less vote for Burr was an oversight, but it resulted in an electoral college tie, requiring contingent election in the House when it met to count the electoral votes on Feb. 11, 1801. Some Federalist Representatives voted for Burr in the contingent election, hoping to deny Jefferson the presidency. A constitutional crisis resulted as voting continued in the House for seven days and required 36 ballots before the impasse was broken and Burr’s support collapsed. Jefferson’s final margin was 10 states to Burr’s four, with two remaining divided.

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