With 538 electors it is possible that Joe Biden and Donald Trump might each end up with 269 electoral votes. What happens then?
Let’s begin with the Twelfth Amendment text specifying the requirement for a candidate to be elected president by the Electoral College:
the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed;
The same rule applies to election of the vice president by the Electoral College.
Notice that a winner doesn’t simply need to have a majority of the electoral votes cast. The winner must have the electoral votes of a majority of the electors appointed. That means that if all 538 electors who can be appointed are, in fact, appointed, then 270 electoral votes are needed for election by the Electoral College, even if some number of these electors are deemed to have cast their electoral votes invalidly. Suppose, for example, that seventeen electors are deemed to have been appointed validly but not to have cast valid electoral votes, leaving only 521 electoral votes cast. Although 261 is a majority of 521 votes cast, 261 would not be a majority of the 538 electors appointed.
At this point the rules for electing the president diverge from the rules for electing the vice president. The Twelfth Amendment specifies the rules for how these contingent elections work if no one has received the electoral votes of a majority of electors appointed. Here is the text regarding election of the president:
…if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.
Notice that the House votes by delegation rather than the per capita. When the Committee on Postponed Matters originally reported the Electoral College scheme to the Convention the contingent election of the president took place in the Senate, with each member having one vote. Concerned that the Senate would have too much power the Convention shifted the contingent election to the House but preserved equal suffrage among the states. This was the Constitutional Convention’s concession to the small states. After being at a disadvantage in the Electoral College the small states would hold the upper hand in the contingent election.
A Contingent Presidential Election in 2020
In the current, 116th Congress Democrats hold about a 35 seat margin but Republicans have a majority in 26 of the delegation. If the presidential election is so close that it goes to the House the Democrats will probably have a reduced per capita majority and the Republicans will probably control a majority of the delegations.
No one expects anyone other Donald Trump or Joe Biden to receive any electoral votes in this election. If that turns out to be true then the House of Representatives can only choose one of those two as president. Constitutionally, there are no other options (unless one of them dies and Congress has never exercised its constitutional power to specify what to do in that case).
If Biden and Trump are the only two options nothing in the Constitution binds a member of the House to vote as her state voted or as his district voted. The Constitution leaves this election to a political body and we must expect that its members will exercise political judgment when deciding how to cast their votes.
No one has had a good word to say about the House contingent election for about two centuries. It was always on the chopping block in the first half of the nineteenth century whenever Congress considered revising the mechanisms by which we elect a president. Many proposals would have given the contingent election to a joint session of Congress with each member having one vote. Others would have sent the election back to the People. At least we can thank the Twentieth Amendment (ratified 1933) for putting the start of the new presidential term seventeen days after the start of the new congressional term so the newly elected House votes in the contingent election.
While the Convention shifted the contingent election of the president from the Senate to the House, it left the contingent election of the vice president with the Senate (whose President the vice president becomes.) Here is the text regarding election of the vice president.
… if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
Two presidential elections have gone to the House and one vice presidential election has gone to the Senate.
The Contingent Election Before Ratification of the Twelfth Amendment
Prior to ratification of the Twelfth Amendment (1804) the electors cast two, undifferentiated electoral votes. The first place finisher became president if (1) he had the electoral votes of a majority of the electors appointed and (2) no one else had the same number of electoral votes. One a president was selected the candidate remaining with the most electoral votes was elected vice president unless there was a tie. (A majority was not needed.) If there was a tie the Senate broke it.
Although parties and tickets had emerged by the third presidential election in 1796 the electors were unable to distinguish their choice for president from their choice for vice president (even though most state statutes descried their role as electing a president and a vice president). In 1796 presidential candidate John Adams finished first with 71 electoral votes (out of 138 electors). Presidential candidate Thomas Jefferson finished second with 68 electoral votes. (One Maryland elector voted for both Adams and Jefferson.) Adams’ running mate Thomas Pinckney received 59 electoral votes. Jefferson’s running mate Aaron Burr received 30. Nine others received a total of 48 electoral votes including George Washington who received two.
If all of these anomalous electoral votes cast in 1796 resulted in a farce, the lack of them resulted in a tragedy in 1800. Once again President Adams ran with a Pinckney from South Carolina. This time it was Thomas’s cousin, General Charles Cotesworth Pinckney. Once again Thomas Jefferson ran with Aaron Burr.
The Adams-Pinckney ticket won 65 electors. The Jefferson-Burr ticket won 73. One of the Adams-Pinckney electors in Rhode Island sloughed off his electoral vote for Pinckney by voting for New York Governor and former Chief Justice John Jay so that Adams would have one more vote than Pinckney. One of the Jefferson-Burr electors somewhere should have done the same so that they would not end up tied. None did.
That left Jefferson and Burr in a first place tie, each with 73 electoral votes, a majority of the number of electors appointed. That sent their names – and no one else’s – to the House of Representatives controlled by John Adams party on a per capita basis and with neither Adams’ party nor Jefferson’s party controlling a majority of the 16 delegations.
The House held the contingent election immediately after Vice President Jefferson announced the results of the electoral vote on February 11. The first ballot failed to produce the necessary nine votes for anyone. Jefferson received the votes of eight states, Adams six, and Maryland and Vermont divided equally. The same result ensured on the second, third, . . . thirty-fifth ballots as February 11 turned into February 16. Historians now believe that some deal was struck so and that on February 17 the representatives from Maryland and Vermont who had voted for Burr cast blank ballots putting those states in Jefferson’s column and electing him president just 15 days before the start of the new presidential term.
Contingent Elections After Ratification of the Twelfth Amendment
Concerned that this episode not be repeated Congress sent the Twelfth Amendment, the Designation amendment, to the states in 1803 and they ratified it in time for the 1804 election. Following ratification the presidential election and the vice presidential election became concurrent processes rather than sequential processes.
One presidential election has gone to the House under the Twelfth Amendment. A different vice presidential election has gone to the Senate under the Twelfth Amendment.
The Contingent Presidential Election of 1824-1825
|Andrew Jackson||99||Retired General, Former Senator|
|John Quincy Adams||84||Secretary of State|
|William Crawford||41||Secretary of the Treasury|
|Henry Clay||37||Speaker of the House|
Andrew Jackson captured the most popular votes and the most electoral votes, but without the votes of a majority of the electors appointed the election went to the House of Representatives which could only choose one of the top three. Fourth place finisher Henry Clay presided over the election in which thirteen of the 24 state delegations voted for Adams on the first ballot. Andrew Jackson’s supporters alleged a corrupt bargain between Adams and Clay who would quickly become Adams’s Secretary of State. It would be of no avail. Jackson would have to wait four years before getting his revenge with a sound thrashing of Adams in the 1828 election.
Interestingly, there was no need for a contingent vice presidential election in 1824/1825. After initially entering the presidential race Secretary of War John C. Calhoun shifted his attention to the vice presidency. Running a campaign more or less independent of any of the presidential candidates Calhoun captured 182 electoral votes, far more than the 131 needed for a majority. Four years later Calhoun would be elected Jackson’s first vice president.
The Contingent Vice Presidential Election of 1836-1837
Unhappy with his insignificant role as Jackson’s vice president Calhoun did not seek reelection in 1832. In fact, he resigned the vice presidency to accept an appointment as one of South Carolina’s senators. Jackson ally Martin Van Buren ran as Jackson’s running mate in 1832 and four years later Van Buren ran for the presidency with Kentucky Representative Richard Mentor Johnson as his running mate.
Johnson had accumulated a lot of political enemies over the years and that mattered in the vice presidential election of 1836. Although 170 of 294 electors appointed vote for Van Buren for president, not all of them voted for Johnson for vice president. Upset that a Virginian had not been picked to be Van Buren’s running mate the Virginia Democratic convention nominated a slate of electors who pledged that they would vote for Van Buren but not for Johnson. After they were elected that is exactly what they did.
That left Johnson with 147 electoral votes, exactly half the number of electors appointed but not a majority. After the two houses of Congress assembled concurrently to count the electoral votes the Senate quickly elected Johnson vice president by a vote of 33-16.
The Key Difference Between a House Contingent Election and a Senate Contingent Election
Let’s return to the Twelfth Amendment texts governing the contingent elections.
the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote
the Senate shall choose the Vice-President
The original text in Article II concerning the contingent presidential election is much the same. On the other hand, there is a slight difference in the Article II text concerning the contingent vice presidential election.
the Senate shall choose from them by ballot the Vice President
Here is how the Senate Journal records the vice presidential election in 1837.
The Secretary of the Senate shall call the names of Senators in alphabetical order; and each Senator will, when his name is called, name the person for whom he votes;
The Secretary having called the names of the Senators, respectively, in alphabetical order, the result was as follows:
The members of the Senate went on record with their votes.
That is not what happened in the House in 1825 (or 1801). In 1825 the House adopted the following rules.
5th. … A ballot box shall be provided for each state.
The Representatives of each state shall, in the first instance, ballot among themselves, in order to ascertain the vote of their state; and they may, if necessary, appoint tellers of their ballots.
Two days later the House followed this rule.
The members of the respective states having taken seats, as required in the 5th rule, adopted on the 7th instant, proceeded to ballot in the manner prescribed by the said rule; and the delegations of the respective states having placed duplicates of their votes in the two general ballot boxes, the said boxes were deposited on tables prepared for the purpose …
Whereupon The following named members were appointed by the states, respectively, tellers to count the ballots, and to report the result to the House;
The tellers proceeded to examine and count the ballots, and having completed the same, and the votes in the two boxes agreeing, the tellers reported that the votes of thirteen states had been given for John Quincy Adams, of Massachusetts; that the votes of seven states had been given for Andrew Jackson, of Tennessee: and that the votes of four states had been given for William H. Crawford, of Georgia:
The language in the House Journal for the one and only post-Twelfth Amendment House election of the president is clear. The members place their ballots into ballot boxes. (They could not place voice votes into a ballot boxes.). The states placed their resulting votes into different ballot boxes.. A summary of the vote by states was made public in the House Journal. But not the vote by state and certainly not the ballots of the members, although their attendance is a matter of public record appearing in the House Journal.