Arguments against the proposal could center on the assertion that amendment would weaken the federal nature of the existing contingent election process, in which each state casts a single vote. Moreover, it could be noted that the amendment does not alter existing vice-presidential election procedures in the Senate, which would continue to incorporate the concept of state equality, given the fact that each Senator casts a single vote.
H.J.Res. 113 was referred to the House Committee on the Judiciary on November 18, 2004. No further action was taken before the 108th Congress adjourned.
Concluding Observations
American presidential elections have generally been dominated by two major parties since the early 19th century, with the major party candidates winning a majority of electoral votes in every election since 1836. A popular third party or independent candidacy has the potential of preventing an electoral vote majority—such candidacies have emerged in four recent presidential elections (1968, 1980, 1992, and 1996). Furthermore, a contest over election results in Florida in the very closely contested presidential election of 2000 raised the possibility that Florida’s electoral votes might be excluded in the electoral vote count session, an action that could have resulted in neither presidential candidate receiving a majority of electoral votes, thus requiring a contingent election.
Under either of the above mentioned scenarios, or in similar circumstances, the House and Senate could be called on to elect the President and Vice President in some future election. Barring any comprehensive reform of the presidential election system, such an election would be governed by the provisions of the 12th Amendment. As noted previously in this report, while important elements of contingent election procedure in both chambers would be prescribed by the 12th Amendment, the Members of the House and Senate would be confronted with the same questions that faced their predecessors in 1800, 1824, and 1836. Particularly in the case of the House of Representatives, a body of precedent exists dating from its two previous experiences with contingent election. These precedents would offer guidance, but would not be considered binding in any future contingent election.
With respect to proposals to change the constitutional arrangements that govern contingent election, such efforts would face the stringent requirements imposed on all proposed amendments, including passage by two-thirds vote in each chamber of Congress, and approval by three-fourths of the states, generally within a seven-year time frame.[1] These constraints have meant that successful amendments are usually the products of broad national consensus, a sense that a certain reform is urgently required, or active support by congressional leadership.[2] In many cases, all the aforementioned factors contributed to the success of an amendment. Given the high hurdles—both constitutional and political—faced by any proposed amendment, it seems likely that contingent election procedures will remain in place unless or until their alleged failings
- ↑ Article V of the Constitution also provides for amendment by a convention, which would assemble on the application of the legislatures of two-thirds of the states. Any amendment proposed by such a convention would also require approval of three-fourths of the states. This alternative method, however, has never been used.
- ↑ These conditions have been met in some cases only after a long period of national debate; for example, in the case of the 19th Amendment, which extended the right to vote to women, was the culmination of decades of discussion and popular agitation. In other instances, amendments have been proposed and ratified in the wake of a sudden galvanizing event or series of events. An example of this may be found in the 12th Amendment itself, or in the more recent 25th Amendment, providing for presidential succession and disability, which received a tremendous impetus following the 1963 assassination of President John F. Kennedy.
