the Senate in the event the Speaker is ineligible, or declines, or the speakership is vacant. The Speaker would be required to resign both as Representative and as Speaker to become Acting President. Similarly, the President pro tempore would be required to resign both as a Senator and as President pro tempore to assume the acting presidency. If both the Speaker and the President pro tempore decline the office, or fail to qualify for any reason, then the acting presidency would devolve upon the head of the most senior executive department (Department of State). The other cabinet secretaries would be similarly eligible in the order of their department’s seniority.[1] By taking the oath of office as Acting President, they would automatically vacate their appointment as a Cabinet officer, thus avoiding the prohibition against dual office holding.[2]
Both the Succession Act and the 20th Amendment specifically limit the service of an Acting President in such circumstances: he holds office only until either a President or Vice President has qualified.
District of Columbia Participation
Although the 23rd Amendment empowers citizens of the District of Columbia to vote in presidential elections, the nation’s capital is not considered a state for the purposes of contingent election. Thus, the District would not participate in the election, despite the fact that its citizens cast both popular and electoral votes for President and Vice President.[3]
Recent Legislative Proposals
Near the end of the 108th Congress, Representative Brad Sherman introduced H.J.Res. 113, a proposed constitutional amendment, on November 18, 2004. Section 1 of his proposal would alter the formula for electing the President under contingent election. Instead of each state casting a single vote, the House of Representatives would vote per capita in such situations, with each Member casting a single vote. The person receiving the greater number of votes would be elected, provided that this number constituted a majority of votes cast. The amendment would also change the existing quorum, which requires that “a member or members from two-thirds of the states” be present. Section 2 would establish the quorum for contingent election as a majority of the House of Representatives; furthermore, a Member or Members representing at least two thirds of the states would need to be present.
Representative Sherman’s proposal would eliminate state equality in the contingent election process for the President. Instead of each state casting a single vote, each Representative would vote. For instance, California would cast 53 votes, while Wyoming, the least populous state as measured by the 2000 Census, would cast one vote, as would other states represented in the House by a single Member. The argument here is that this process would be more democratic, reflecting the great disparities in population and the number of votes cast among the states.[4]
- ↑ These would presumably be Cabinet officers of the outgoing administration whose resignations had yet to be accepted.
- ↑ For additional information on presidential succession and the role of the Cabinet in this process, see CRS Report RL31761, Presidential Succession: An Overview with Analysis of Legislation Proposed in the 108th Congress, by Thomas H. Neale.
- ↑ CRS general distribution memorandum, Would the District of Columbia Be Allowed to Vote in the Selection of the President by the House of Representatives, by Thomas B. Ripy, July 7, 1980 (available to congressional clients upon request from the author of this report).
- ↑ It would, however, preserve a small arithmetical advantage for less populous states, analogous to the advantage they currently enjoy in the allocation of House seats.
