at a majority. Under this theory, the popular and electoral college results had no bearing or influence on the contingent election process, and Representatives were, therefore, free to consider the merits of the contending candidates without reference to the earlier contest.[1] It is likely that many of these considerations, or similar ones, would be raised in any future contingent election.
Contingent Election of the Vice President in 1837[2]
Procedures adopted by the Senate in 1837 differed from those of the House in 1825, and were simpler. The 12th Amendment’s requirements the House vote “immediately, by ballot” do not appear in the language governing contingent election of the Vice President. Consequently, the Senate decided that the roll would be called in alphabetical order, at which time each Senator would name the person for whom he voted.[3] Nor does the Senate Journal provide any evidence that the gallery was closed. It is also interesting to note that President pro tempore William R. King presided over the contingent election of 1837. This may have been due to the fact that the incumbent Vice President, Martin Van Buren, was also President-elect, and had “retired” from the Senate on January 28, 1837.
The 20th Amendment and the Presidential Succession Act of 1947
The contingent election process was modified in the 20th century by the 20th Amendment to the Constitution, and the Presidential Succession Act of 1947 (61 Stat. 380; 3 U.S.C. 19). Section 1 of the amendment set new expiration dates for congressional and presidential terms, changing the former to January 3 and the latter to January 20. Previously, both terms had expired on March 4. The primary purpose of this change was to eliminate the historical anomaly of lame duck congressional sessions, while also shortening the period between election and inauguration of the President and Vice President by six weeks. A subsidiary purpose, as revealed by the amendment’s legislative history, was to remove the responsibility for contingent election from a lame duck Congress.[4] Section 3 restates the 12th Amendment provision that the Vice President (assuming one has been chosen) acts as President in the event the House is unable to elect a President in the contingent election process. It also empowers Congress to provide by law for situations in which neither a President nor a Vice President “qualifies,” (i.e, neither has been elected).
The Presidential Succession Act, among other effects, reinforces this safeguard by naming the Speaker of the House of Representatives to serve as Acting President in such situations (i.e., neither a President nor Vice President has qualified) or, alternatively, the President pro tempore of
- ↑ CRS archived report, Election of the President by the House of Representatives and the Vice President by the Senate: Relationship of the Popular Vote for Electors to Subsequent Voting in the House of Representatives in 1801 and 1825 and in the Senate in 1837, by Joseph B. Gorman (out of print; available to congressional clients upon request from author of this report).
- ↑ An internal dispute in the Democratic Party led to contingent election of the Vice President in the Senate in 1837. Democratic presidential nominee Martin Van Buren won a comfortable electoral vote majority in the 1836 election, but his controversial running mate, Richard Mentor Johnson, split the vote with an “independent” Democratic vice presidential nominee, thus requiring contingent election. Electoral votes were counted on Feb. 8, 1837, in a joint session of the 24th Congress, and the Senate then immediately returned to its own chamber to elect the Vice President. Since the Senate’s choice was limited by the 12th Amendment to the two candidates gaining the most electoral votes (rather than three, as required for presidential contingent elections), it chose between Johnson and his leading Whig opponent, Francis Granger. Johnson was elected with 33 votes to 16 for Granger.
- ↑ U.S. Congress, Senate, Journal of the Senate, 24th Cong., 2nd sess. (Washington: Gales and Seaton, l836 [sic]), pp. 229–230.
- ↑ U.S. Congress, Senate Committee on the Judiciary, report to accompany S.J.Res. 14, 72nd Cong., 1st sess. S.Rept. 26 (Washington: GPO, 1932), p. 4.
