Election of the President and Vice President by Congress: Contingent Election

CRS Report for Congress
Election of the President and Vice President
by Congress: Contingent Election
December 14, 2004
Thomas H. Neale
Government and Finance Division

Congressional Research Service ˜ The Library of Congress

Election of the President and Vice President
by Congress: Contingent Election
The 12th Amendment to the Constitution requires that candidates for President
and Vice President receive a majority of electoral votes (currently 270 or more of a
total of 538) to be elected. If no candidate receives a majority, the President is
elected by the House of Representatives (which occurred once, in 1825), and the Vice
President is elected by the Senate (which also occurred once, in 1837). This process
is known as contingent election.
The 12th Amendment prescribes some contingent election procedures for the
President: the President is elected from among the three candidates who received the
most electoral votes; each state casts a single vote for President; a majority (26 or
more) state votes is required to elect a President; the House must vote “immediately”
to the exclusion of all other business, and by secret paper ballot. In cases where a
state has only one Representative, that Member would decide the state vote. For
other procedures, precedents exist from the contingent election rules for 1825, as
drawn up by a select committee established for that purpose. In 1825, the House
decided that a majority of votes of Representatives in each state delegation was
required to cast the state vote for a particular candidate, or the state vote would
registered as “divided” and not credited to any candidate. These decisions reached
in 1825 would be precedential, but not binding, in future contingent elections.
The Senate elects the Vice President under contingent election procedures. It
chooses from among the two candidates who received the most electoral votes, with
each Senator casting a single vote. A majority of the whole Senate, (51 or more), is
necessary to elect. Precedent suggests that, unlike the House, the Senate would
choose the Vice President by voice vote.
The District of Columbia does not participate in contingent election of either the
President or Vice President.
Contingent election would be conducted by the newly elected Congress
immediately following the January 6 joint electoral vote count session. If the House
is unable to elect a President by January 20 (when the new presidential and vice
presidential terms begin), the Vice President-elect serves as Acting President until
the impasse is resolved. If the Senate is unable to elect a Vice President by January

20, then the Speaker of the House serves as Acting President.

In the 108th Congress, Representative Brad Sherman introduced H.J.Res. 113,
a proposed constitutional amendment that would revise voting procedures for
President in a contingent election. Under the proposed amendment, Representatives
would cast votes on an individual basis; the candidate who received the greatest
number of votes, provided it was a majority of votes cast, would be elected President.
The resolution was referred to the House Committee on the Judiciary, which took no
further action before the House adjourned.
This report will be updated if events warrant.

The 12th Amendment in Constitutional History.......................1
The 12th Amendment and Contingent Election.......................2
Contingent Election of the President: What Rules Would Govern
the Procedure?........................................3
Contingent Election in 1825: Representatives Debate Their Options..4
Contingent Election of the Vice President in 1837................5th
The 20 Amendment and the Presidential Succession Act of 1947.......5
District of Columbia Participation.................................6
Recent Legislative Proposals.....................................6
Concluding Observations........................................7

Election of the President and Vice President
by Congress: Contingent Election
The 12th Amendment in Constitutional History
The 12th Amendment to the U.S. Constitution was proposed by Congress in
1803, following the constitutional crisis that marred the presidential election of
1801.1 State ratifications followed quickly, and the 12th Amendment was declared
to be in effect on September 25, 1804. The amendment’s provisions, which remain
in effect, are summarized as follows.
!The electors cast separate ballots for President and Vice President.
!The votes are opened and counted in a joint session of Congress
presided over by the President of the Senate (the Vice President or
the President pro tempore).
!The person having a majority of electoral votes for each office is
!If no candidate for President gains a majority, then the House votes
“immediately, by ballot” for President (contingent election),

1 The Constitution’s original provisions (Article II, Section 1) required each elector to cast
two undifferentiated votes for President — one each for two preferred candidates. There
was no separate electoral vote for Vice President. Failing (or having been unwilling) to
anticipate the growth of political parties that would offer unified tickets of a presidential and
vice presidential nominee, the Constitutional Convention had not provided distinct votes for
the two executive offices. The candidate receiving the most votes was elected President,
provided the votes constituted a number equal to a majority of electors, not electoral votes.
The runner-up was elected Vice President. In the event of a tie vote, or if no candidate
received a vote from a majority of electors, the House of Representatives was to elect the
President from among the five candidates receiving the most electoral votes. Again, the
runner-up would be Vice President. Voting was by states, with each state casting a single
ballot. By 1796, both nascent political parties, the Federalists and Jeffersonians (or
Republicans, but not to be confused with the contemporary Republican Party) arranged to
have one of their electors withhold his vote for the de facto vice presidential candidate, to
prevent a tie, and thus avoid contingent election. The deficiencies of this awkward
arrangement became apparent in the election of 1800, when all Jeffersonian electors cast one
vote each for presidential candidate Thomas Jefferson and vice presidential candidate Aaron
Burr. The failure to cast one less vote for Burr was an oversight, but it resulted in an
electoral college tie, requiring contingent election in the House when it met to count the
electoral votes on Feb. 11, 1801. Some Federalist Representatives voted for Burr in the
contingent election, hoping to deny Jefferson the presidency. A constitutional crisis resulted
as voting continued in the House for seven days and required 36 ballots before the impasse
was broken and Burr’s support collapsed. Jefferson’s final margin was 10 states to Burr’s
four, with two remaining divided.

choosing from among the three candidates who received the most
electoral votes.
!A quorum of at least one Representative from two-thirds of the
states (34 at present) is necessary for the purposes of contingent
!The vote is taken by states, with each state casting a single vote.
!The votes of a majority of states (26 at present) are necessary to elect
the President.
!If the House is unable to elect prior to expiration of the presidential
term (January 20 since ratification of the 20th Amendment), then the
Vice President, assuming one has been elected, serves as Acting
President until a President is chosen.
!If no candidate for Vice President receives a majority of electoral
votes, then the Senate elects, choosing between the two candidates
receiving the most electoral votes. A quorum of two-thirds of the
Senate (67 Members at present) is necessary for the purposes of
contingent election of the Vice President Each Senator casts a single
vote. The votes of a majority of the whole Senate (51 or more at
present) are necessary to elect the Vice President.
The 12th Amendment and Contingent Election
As noted previously, the 12th Amendment established what has become known
as contingent election as a “fall-back” procedure that takes place only when no
candidate wins an electoral college majority.2 Contingent election could occur as a
result of several series of events: (1) three or more candidates split the electoral vote
so that no one receives a majority; (2) a sufficient number of “faithless” electors cast
blank ballots or vote for candidates other than those to whom they are pledged, thus
denying a majority to any candidate; or (3) the electoral college could tie at 269 votes
each for two candidates. Contingent elections have been conducted only twice since
ratification of the 12th Amendment: for the President in 1825, following the election
of 1824;3 and for the Vice President in 1837, following the election of 1836.

2 “Candidate” or “candidates” refers interchangeably to the nominees for President and Vice
3 The emergence of four major presidential candidates in 1824, all of whom were
Democratic Republicans, as the former Jeffersonians were then known, led to fragmentationth
of the electoral vote, resulting in contingent election in 1825. Under the 12 Amendment,
the top three electoral vote-getters, Andrew Jackson (99 votes), John Quincy Adams (84
votes), and William Crawford (41 votes) could be considered by the House. The fourth
candidate, Henry Clay (37 votes), was excluded by the Amendment. Although out of the
running, Clay threw his considerable support to Adams, so that when contingent election
was conducted in the House on Feb. 9, 1825, Adams was chosen on the first ballot with 13
state votes to Jackson’s seven, and four for Crawford. Jackson supporters attacked the
Adams-Clay alliance as a “corrupt bargain” and immediately began planning for their
candidate’s campaign and ultimate victory in 1828. In contrast with the contentious
presidential vote, John C. Calhoun received an overwhelming majority of 182 of 260
electoral votes cast for Vice President in the 1824 election.

Contingent Election of the President: What Rules Would Govern the
Procedure? The 12th Amendment itself provides some of the rules for contingent
election of the President.
!First, it requires that the House “shall choose immediately ... the
President.” This was interpreted in 1825 as directing that the
election be conducted not only immediately, but to the exclusion of
any other business until a President was chosen.
!The same sentence prescribes election “by ballot.” In 1825, this was
interpreted as requiring the use of secret paper ballots.
!The vote must be taken by states, with each state casting a single
vote, again by a secret paper ballot.
!A quorum for contingent election consists of a Member or Members
representing two thirds (34 at present) of the states.
!Finally, the votes of a majority of states, 26 of the present total of 50,
is necessary to elect the President.
!If the House has been unable to choose by the date the incumbent
President’s term expires (January 20, under the 20th Amendment),
then the Vice President (assuming one has been chosen) acts as
President until a President is chosen.
Procedures adopted for the 1825 election filled in some of the 12th
Amendment’s gaps. These would provide a precedent for any future contingent
election, as they were themselves largely based on procedures used in 1801, but they
would not be binding on future Congresses. A summary of these rules, which were
drawn up by a select House committee consisting of one Representative from each
state, follows.
!The House met in closed session, with only stenographers, House
officers, Representatives, and Senators allowed to be present.
!Motions to adjourn were not entertained unless offered and seconded
by state delegations, not individual Members.
!State delegations were arranged in the House chamber from left to
right in the order in which the roll was called. At the time, the roll
began with Maine, proceeded north to south through the original
states, and concluded with subsequently admitted states, in order of
their entry into the Union.
!The election consisted of a two-round process: Members of the state
delegations voted internally in the first round and the results of the
state votes themselves were cast in the second round.
!Each state delegation received a ballot box for first round voting and
two additional general ballot boxes were provided for the second
!All votes were cast anonymously, on paper ballots, in both rounds.
!If one candidate received a majority of votes cast in the state
delegation4 in the first round, the state vote was cast for that
candidate in the second round. The state delegations prepared two

4 The majority required was of those votes cast, not a majority of the entire delegation.

ballots for the second round, each inscribed with the name of the
winning candidate, if any. If there was no majority, the ballot was
inscribed “divided.”
!The duplicate second round results were collected by tellers and
deposited in duplicate ballot boxes in the House chamber. The
contents were counted by tellers, compared, and reported to the
House. 5
It should be noted again that these decisions applied only to the rules under
which the House of Representatives conducted contingent election of the President
in 1825; although they would provide a reference for the House in any future
application of the contingent election process, they would not be prescriptive, and
could be subject to different interpretations. For instance, in the modern context,
there would almost certainly be strong pressure for contingent election sessions in
both chambers to be not only open to the public and reporters, but covered by radio
and television as well. Similarly, there might be strong support for individual
Members’ votes to be made public in the House of Representatives, given the fact
that the constitutional injunction that voting be “by ballot,” and therefore secret,
arguably applies only to the votes of the states in the second round.
Contingent Election in 1825: Representatives Debate Their Options.
Spirited debate as to the nature and requirements of contingent election preceded the
actual vote in 1825. One question concerned the role of individual Representatives.
Some asserted that it was the duty of the House to choose Jackson, the candidate who
had won a national plurality of the popular and electoral vote. Others believed they
should vote for the popular vote winner in their state or district. Another school of
opinion suggested that House Members should give prominence to the popular
results, but also consider themselves at liberty to weigh the comparative merits of the
three candidates. Still others asserted that contingent election was a constitutionally
distinct process, triggered by the failure of the people (and the electors) to arrive 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.6 It is likely that many of these considerations, or similar ones,
would be raised in any future contingent election.

5 U.S. Congress, House, Hind’s Precedents of the House of Representatives (Washington:
GPO, 1907), vol.3, pp. 292-293.
6 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 from author of this report).

Contingent Election of the Vice President in 1837.7 Procedures adopted
by the Senate in 1837 differed from those of the House in 1825, and were simpler.th
The 12 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.8 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.9 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 the Senate in the event the Speaker is

7 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,th
in a joint session of the 24 Congress, and the Senate then immediately returned to its ownth
chamber to elect the Vice President. Since the Senate’s choice was limited by the 12
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.
8 U.S. Congress, Senate, Journal of the Senate, 24th Cong., 2nd sess. (Washington: Gales and
Seaton, l836 [sic] ), pp. 229-230.
9 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.

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.10 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.11
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.12
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.

10 These would presumably be Cabinet officers of the outgoing administration whose
resignations had yet to be accepted.
11 For additional information on presidential succession and the role of the Cabinet in this
process, see CRS Report RL31761, Presidential and Vice Presidential Succession:
Overview and Current Legislation, by Thomas H. Neale.
12 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 from the author of this report).

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.13
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
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

13 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.

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.14 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.15 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 become so compelling that large concurrent majorities in the
public, the Congress, and the states, are prepared to undertake their reform.

14 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.
15 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 orth
series of events. An example of this may be found in the 12 Amendment itself, or in theth
more recent 25 Amendment, providing for presidential succession and disability, which
received a tremendous impetus following the 1963 assassination of President John F.