Contingent election

Not to be confused with Contingent vote.

In the United States, a contingent election is the procedure used in presidential elections in the case where no candidate wins an absolute majority of votes in the Electoral College, the constitutional mechanism for electing the president and the vice president of the United States. A contingent election for the president is decided by a vote of the United States House of Representatives, and the contingent election for the vice president is decided by a vote of the United States Senate. The contingent election procedure, along with the other parts of the presidential election process, was first established in Article Two, Section 1, Clause 3 of the United States Constitution, and then modified by the 12th Amendment in 1804.

Contingent elections are extremely rare, having occurred only three times in American history, all in the early 19th century. In 1800, Thomas Jefferson was pitted against his own vice-presidential nominee in a contingent election due to problems with the original electoral procedure. In 1824, the presence of four candidates split the Electoral College, and Andrew Jackson lost the contingent election to John Quincy Adams despite winning a plurality of both the popular and electoral vote. In 1836, faithless electors in Virginia refused to vote for Martin Van Buren's vice-presidential nominee Richard Mentor Johnson, denying him a majority of the electoral vote and forcing the Senate to elect him in a contingent election.

Electoral College overview

In the United States, the president and vice president are indirectly elected by the Electoral College, which (since ratification of the 23rd Amendment in 1961) consists of 538 presidential electors from the 50 states and the District of Columbia. Presidential electors themselves are directly elected on a state-by-state basis. Since the election of 1824, a majority of the states have chosen their electors on a statewide winner-take-all basis, based on the statewide popular vote on Election Day. Maine and Nebraska are the only two current exceptions, as both states use the congressional district method. Although ballots list the names of the presidential and vice presidential candidates (who run on a ticket), voters actually choose electors when they vote for president and vice president. These presidential electors in turn cast electoral votes for those two offices. Electors usually pledge to vote for their party's nominee, but some "faithless electors" have voted for other candidates.

A candidate must receive an absolute majority of electoral votes (currently 270) to win the presidency or the vice presidency. If no candidate receives a majority in the election for president or vice president, that election is determined via a contingency procedure established by the 12th Amendment. In such a situation, the House chooses one of the top three presidential electoral vote-winners as the president, while the Senate chooses one of the top two vice presidential electoral vote-winners as vice president.

The contingent election process was modified by the 20th Amendment, which took effect in 1933. The amendment greatly reduces the length of lame-duck sessions of Congress. As a result, the lame-duck Congress no longer conducts contingent elections, with the newly-elected Congress instead conducting contingent elections. For example, if a contingent election had been held to determine the outcome of the 1936 presidential election, the 75th United States Congress would have been charged with conducting the contingent election. In the 75th Congress, all members of the House of Representatives, and approximately one-third of the members of the Senate, had been elected in the 1936 elections.

Section 3 of the 20th Amendment specifies that if the House of Representatives has not chosen a president-elect in time for the inauguration (noon on January 20), then the vice president-elect becomes acting president until the House selects a president. Section 3 also specifies that Congress may statutorily provide for who will be acting president if there is neither a president-elect nor a vice president-elect in time for the inauguration. Under the Presidential Succession Act of 1947, the Speaker of the House would become acting president until either the House selects a president or the Senate selects a vice president. None of these situations has ever occurred. The Constitution's silence on this point could have caused a constitutional crisis in the 1801 contingent election, as the House of Representatives seemed for a time to be hopelessly unable to resolve Jefferson–Burr Electoral College deadlock.

Contingent election procedures

Presidential election

Pursuant to the 12th Amendment, the House of Representatives is required to go into session immediately after the counting of the electoral votes to vote for president if no candidate for the office receives a majority of the electoral votes. In this event, the House is limited to choosing from among the three candidates who received the most electoral votes. Each state delegation votes en bloc, with each state having a single vote. A candidate is required to receive an absolute majority of state delegation votes (currently 26 votes) in order for that candidate to become the president-elect. The District of Columbia, which is not a state, does not receive a vote. The House continues balloting until it elects a president.

Historically, a delegation that did not give a majority of its vote to any one candidate was marked as "divided," and thus did not award its vote to any candidate. However, the requirement for a majority vote of the state's delegation is not present in the Constitution, and future contingent elections could require only a plurality, rather than a majority, of the state delegation to vote for a candidate. Previous contingent elections were held in a closed session, and the votes of each member of the House was not revealed. The Constitution does not require a closed session for contingent elections, and future contingent elections could be held in an open session with public voting.

Vice-presidential election

If no candidate for vice president receives an absolute majority of electoral votes, then the Senate must go into session to elect a vice president. The Senate is limited to choosing from only the two candidates who received the most electoral votes. Unlike in the House, senators cast votes individually in this election. Additionally, the 12th Amendment states that a "majority of the whole number" of senators (currently 51 of 100) is necessary for election. The language requiring an absolute majority of Senate votes may preclude the sitting vice president from breaking any tie which might occur, although some academics and journalists have speculated to the contrary.

Past contingent elections

Presidential election of 1800

Further information: 1800 United States presidential election § 1801 contingent election

The Democratic-Republican Party intended for Thomas Jefferson (left) to be elected president and Aaron Burr (right) to be vice president, but they tied in the Electoral College and many Federalists in the House of Representatives voted for Burr in the contingent election due to their opposition to Jefferson.

The 1800 presidential election pitted Democratic-Republican ticket Thomas Jefferson and Aaron Burr against Federalist Party ticket John Adams and Charles Cotesworth Pinckney. Under the Constitution as it then stood, before the passage of the 12th Amendment each elector cast two votes, and the candidate with a majority of the votes was elected president, with the vice-presidency going to the runner-up. Each party formed a plan in which one of their respective electors would vote for a third candidate or abstain so that their preferred presidential candidate (Adams for the Federalists and Jefferson for the Democratic-Republicans) would win one more vote than the party's other nominee. Democratic-Republicans failed to execute the plan however, thus Jefferson and Burr tied at 73 electoral votes each; Adams came in third with 65 votes.

The Constitution also mandated that, "if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President." Therefore, Jefferson and Burr were admitted as candidates in the House election. Although the congressional election of 1800 turned over majority control of the House of Representatives to the Democratic-Republicans, the presidential election would be decided by the outgoing House, which had a Federalist majority. Even so, under the Constitution, voting to elect the President in contingent elections is done by state delegation, with each state having a single vote. As a result, neither party had a majority because some states had split delegations. Given this deadlock, Democratic-Republican representatives, who generally favored Jefferson for president, contemplated two distasteful possible outcomes: either the Federalists manage to engineer a victory for Burr, or they refuse to break the deadlock leaving a Federalist—Secretary of State John Marshall—as Acting President come Inauguration Day.

Over the course of seven days, from February 11 to 17, the House cast a total of 35 ballots, with Jefferson receiving the votes of eight state delegations each time, one short of the necessary majority of nine. On February 17, on the 36th ballot, Jefferson was elected. Several Federalist representatives cast blank ballots, resulting in Maryland and Vermont's votes changing from no selection to Jefferson, giving him the votes of 10 states and the presidency. This situation was the impetus for the passage of the Twelfth Amendment, which provided for separate elections for president and vice president in the Electoral College.

Presidential election of 1824

Further information: 1824 United States presidential election § 1825 contingent election

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Four candidates received votes in the Electoral College in 1824, with no candidate attaining a majority. The House of Representative elected John Quincy Adams (left) even though Andrew Jackson (right) had won a plurality of both the electoral and popular votes in the original election.

The 1824 presidential election came at the end of the Era of Good Feelings in American politics, and featured four candidates who would win electoral votes: Andrew Jackson, John Quincy Adams, William H. Crawford, and Henry Clay. While Andrew Jackson received more electoral and popular votes than any other candidate, he did not receive the majority of 131 electoral votes required to win the election, leading to a contingent election in the House of Representatives. (Vice presidential candidate John C. Calhoun easily defeated his rivals, as the support of both the Adams and Jackson camps gave him an unassailable lead over the other candidates.)

Following the provisions of the 12th Amendment, only the top three candidates in the electoral vote (Jackson, Adams, and Crawford) were admitted as candidates in the House: Clay, the Speaker of the House at the time, was eliminated. Clay subsequently threw his support to Adams, who was elected President on February 9, 1825, on the first ballot with 13 states, followed by Jackson with seven, and Crawford with four.

Adams' victory shocked Jackson, who, as the winner of a plurality of both the popular and electoral votes, expected to be elected president. By appointing Clay his Secretary of State, President Adams essentially declared him heir to the Presidency, as Adams and his three predecessors had all served as Secretary of State. Jackson and his followers accused Adams and Clay of striking a "corrupt bargain", which the Jacksonians would campaign on for the next four years, ultimately attaining Jackson's victory in the Adams–Jackson rematch in 1828.

Vice presidential election of 1836

Further information: 1836 United States presidential election § 1837 contingent election

While Democratic presidential candidate Martin Van Buren won a majority of the Electoral College, Virginia's electors refused to vote for his running mate Richard Mentor Johnson (left), forcing a contingent election in the Senate against Whig candidate Francis Granger (right).

In the 1836 presidential election, Democratic presidential candidate Martin Van Buren and his running mate Richard Mentor Johnson won the popular vote in enough states to receive a majority of the Electoral College. However, Virginia's 23 electors all became faithless electors and refused to vote for Johnson, leaving him one vote short of the 148-vote majority required to elect him. Under the 12th Amendment, a contingent election in the Senate had to decide between Johnson and Whig candidate Francis Granger. Johnson was elected easily in a single ballot by 33 to 16.

Proposed alterations

Some members of Congress have proposed constitutional amendments to alter the contingent election process. Some proposals call for the abolition of the Electoral College and the contingent election process in favor of the direct election of the president, with the candidate who receives a plurality or majority of the popular vote becoming president. Other proposals have sought to alter the contingent election process for president so that each member of the House, rather than each state delegation, holds one vote.