The 12th Amendment and Contingent Election
As noted previously, the 12th Amendment established what has become known as contingent election as a “fall-back” procedure that takes place only when no candidate wins an electoral college majority.[1] Contingent election could occur as a result of several series of events: (1) three or more candidates split the electoral vote so that no one receives a majority; (2) a sufficient number of “faithless” electors cast blank ballots or vote for candidates other than those to whom they are pledged, thus denying a majority to any candidate; or (3) the electoral college could tie at 269 votes each for two candidates. Contingent elections have been conducted only twice since ratification of the 12th Amendment: for the President in 1825, following the election of 1824;[2] and for the Vice President in 1837, following the election of 1836.
Contingent Election of the President: What Rules Would Govern the Procedure?
The 12th Amendment itself provides some of the rules for contingent election of the President.
- First, it requires that the House “shall choose immediately… the President.” This was interpreted in 1825 as directing that the election be conducted not only immediately, but to the exclusion of any other business until a President was chosen.
- The same sentence prescribes election “by ballot.” In 1825, this was interpreted as requiring the use of secret paper ballots.
- The vote must be taken by states, with each state casting a single vote, again by a secret paper ballot.
- A quorum for contingent election consists of a Member or Members representing two thirds (34 at present) of the states.
- Finally, the votes of a majority of states, 26 of the present total of 50, is necessary to elect the President.
- If the House has been unable to choose by the date the incumbent President’s term expires (January 20, under the 20th Amendment), then the Vice President (assuming one has been chosen) acts as President until a President is chosen.
Procedures adopted for the 1825 election filled in some of the 12th Amendment’s gaps. These would provide a precedent for any future contingent election, as they were themselves largely based on procedures used in 1801, but they would not be binding on future Congresses. A summary of these rules, which were drawn up by a select House committee consisting of one Representative from each state, follows.
- ↑ “Candidate” or “candidates” refers interchangeably to the nominees for President and Vice President.
- ↑ The emergence of four major presidential candidates in 1824, all of whom were Democratic Republicans, as the former Jeffersonians were then known, led to fragmentation of the electoral vote, resulting in contingent election in 1825. Under the 12th Amendment, the top three electoral vote-getters, Andrew Jackson (99 votes), John Quincy Adams (84 votes), and William Crawford (41 votes) could be considered by the House. The fourth candidate, Henry Clay (37 votes), was excluded by the Amendment. Although out of the running, Clay threw his considerable support to Adams, so that when contingent election was conducted in the House on Feb. 9, 1825, Adams was chosen on the first ballot with 13 state votes to Jackson’s seven, and four for Crawford. Jackson supporters attacked the Adams–Clay alliance as a “corrupt bargain” and immediately began planning for their candidate’s campaign and ultimate victory in 1828. In contrast with the contentious presidential vote, John C. Calhoun received an overwhelming majority of 182 of 260 electoral votes cast for Vice President in the 1824 election.
