Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis

April 10, 2009 – October 6, 2020 R40504

Contingent Election of the President and Vice
President by Congress: Perspectives and
Contemporary Analysis
Updated October 6, 2020
Congressional Research Service
https://crsreports.congress.gov
R40504

Contingent Election of the President and Vice President by Congress

Summary
The 12th Amendment to the Constitution requires that presidential and vice presidential candidates
gain “a majority of the whole number of Electors appointed” in order to win election. With a total
of 538 electors representing the 50 states and the District of Columbia, 270 electoral votes is the
“magic number,” the arithmetic majority necessary to win the presidency.
What would happen if no candidate won a majority of electoral votes? In these circumstances, the
12th Amendment also provides that the House of Representatives would elect the President, and
the Senate would elect the Vice President, in a procedure known as “contingent election.”
Contingent election has been implemented twice in the nation’s history under the 12th
Amendment: first, to elect the President in 1825, and second, the Vice President in 1837.
In a contingent election, the House would choose among the three candidates who received the
most electoral votes. Each state, regardless of population, casts a single vote for President in a
contingent election. Representatives of states with two or more Representatives would therefore
need to conduct an internal poll within their state delegation to decide which candidate would
receive the state’s single vote. A majority of state votes, 26 or more, is required to elect, and the
House must vote “immediately” and “by bal ot.” Additional precedents exist from 1825, but they
would not be binding on the House in a contemporary election. In a contingent election, the
Senate elects the Vice President, choosing one of the two candidates who received the most
electoral votes. Each Senator casts a single vote, and the votes of a majority of the whole Senate,
51 or more, are necessary to elect. The District of Columbia, which is not a state, would not
participate in a contingent election, despite the fact that it casts three electoral votes.
Although contingent election has been implemented only once each for President and Vice
President since the 12th Amendment was ratified, the failure to win an electoral college majority is
a potential outcome in any presidential election. Some examples include an election closely
contested by two major candidates, one in which one or more third-party or independent
candidacies might win a portion of the electoral vote, or one involving defections by a significant
number of so-cal ed “faithless” electors.
A contingent election would be conducted by a newly elected Congress, immediately following
the joint congressional session that counts and certifies electoral votes. This session is set by law
for January 6 of the year following the presidential election, but is occasional y rescheduled. If
the House is unable to elect a President by the January 20 inauguration day, the 20th Amendment
provides that the Vice President-elect would act as President until the impasse is resolved. If
neither a President nor Vice President has been chosen by inauguration day, the Presidential
Succession Act applies, under which the Speaker of the House of Representatives, the President
pro tempore of the Senate, or a Cabinet officer, in that order, would act as President until a
President or Vice President qualifies.
A contingent election would require Congress to consider and discharge functions of great
constitutional significance, which could be complicated by a protracted and contentious political
struggle that might stem from an electoral college deadlock. This report provides an examination
of constitutional requirements and historical precedents associated with contingent election. It
also identifies and evaluates contemporary issues that might emerge in the modern context.
Congressional Research Service

Contingent Election of the President and Vice President by Congress

Introduction
The 12th Amendment to the Constitution provides backup, or standby, procedures by which the
House of Representatives would elect the President, and the Senate the Vice President, in the
event no candidate wins a majority of electoral votes. Although this procedure, known as
contingent election, has been implemented only once for each office since the amendment’s
ratification, the failure to win an electoral college majority is theoretical y possible in any
presidential election. Some contingencies that might lead to an electoral college deadlock include
 an election that is closely contested by two major candidates, leading to a tie vote
in the electoral college;
 one in which multiple candidates gain electoral votes so that no candidate wins a
majority; or
 an election where a number of electors sufficient to deny a majority to any
candidate votes against the candidates to whom they are pledged.
Any one of these developments would require Congress to consider and discharge functions of
great constitutional significance. Moreover, the magnitude of these responsibilities might wel be
further highlighted by the fact that an electoral college deadlock would arguably lead to a period
of protracted and contentious political struggle. This report examines constitutional requirements
and historical precedents associated with the contingent election process. It also identifies and
evaluates contemporary issues that might emerge in the modern context.
Origins of the 12th Amendment and Contingent
Election
The 12th Amendment to the U.S. Constitution, with its provisions for contingent election, was
proposed by Congress and ratified by the states in response to the constitutional crisis that marred
the presidential election of 1800 and threatened the stil -new American system of government
under the Constitution.
Original Action: The Electoral Vote and Contingent Election as
Established in the Constitution
The Constitution’s original provisions established a system of undifferentiated voting by
presidential electors that proved unworkable after only four elections. Article II, Section 1 of the
Constitution required each elector to cast two votes for his two preferred choices for President (at
least one of whom was required to be from a different state than that of the elector)1 but none for
Vice President. The candidate who received the most electoral votes was elected President,
provided that the total number of votes also was a majority of the total number of electors, not
electoral votes. The runner-up was elected Vice President. If no candidate received electoral votes

1 T he convention delegates feared that once George Washington, the “indispensable man,” had passed from the scene,
there would never again be a political figure commanding such broad recognition and prestige. T he convention
expected that electors would be likely to vote only for citizens of the same state, “ favorite sons,” for President. The
requirement that each elector cast one vote for someone outside his home state was thus intended to promote a broader,
more national outlook. See Clinton L. Rossiter, 1787, The Grand Convention (New York, Macmillan: 1966), p. 219.
T he requirement continues, in altered form, in the 12 th Amendment: each elector currently votes “ by ballot for
President and Vice president, one of whom, at least, shall not be an inhabitant of the same state with themselves.... ”
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equal to or greater than a majority of electors, or if there were a tie, then the House of
Representatives would elect the President from among the five candidates who received the most
electoral votes. Again, the runner-up would be Vice President. Voting in this original form of
contingent election was by states, with each state’s House delegation casting a single bal ot.
The problem was that the Philadelphia Convention of 1787 failed, or perhaps was unwil ing, to
anticipate the rise and rapid growth of political factions, or parties. Although the Constitution did
not contemplate the existence of candidates for Vice President, by 1796, the nascent party
organizations offered joint tickets for the two highest offices that included both a presidential and
vice presidential candidate, running as a team.
George Washington retired in 1796. During his second term, two political factions, the pro-
administration Federalists and the anti-administration Jeffersonians, or Jeffersonian Republicans,2
began to assume most of the classic characteristics of political parties. In the presidential election
to choose his successor in that year, both groups offered unified tickets with clearly identified
party candidates for President and Vice President. In order to avoid a tie vote in the electoral
college, and thus a second round, or contingent election by the House, party strategists planned
that one or more of their electors would withhold a vote for the de facto vice-presidential
candidate, and cast it for someone else—but neither party was able to “fine tune” the electors’
actions to accomplish this goal. When the results were counted, the Federalists had won a
majority of 71 electors to the Jeffersonians’ 68. While Federalist electors al cast their first,
“presidential,” vote for their presidential candidate, John Adams, they split their second “vice
presidential” vote among six different candidates. Similarly, the Jeffersonian electors al cast their
first vote for Thomas Jefferson, but scattered their second vote among four vice presidential
candidates.3 The result was that although Adams was elected chief executive with 71 electoral
votes, his rival, runner-up Thomas Jefferson, was elected Vice President with 68 electoral votes.
Constitutional Crisis: The Election of 1800
The deficiencies of the arrangement established in the Constitution became more than an
annoyance in the election of 1800, when the two incumbents, President Adams and Vice President
Jefferson, opposed each other for the presidency a second time. In a hard-fought contest, the
Jeffersonian Republicans prevailed, winning 73 electors to the Federalists’ 65. In a noteworthy
omission, especial y considering the election results in 1796, al the Jeffersonian electors cast
their first vote for presidential candidate Jefferson, but al 73 also cast their second vote for Aaron
Burr, his vice presidential running mate. The failure to cast at least one less vote for Burr was an
oversight, but it resulted in an electoral college tie between the two, requiring contingent
election.4
The House and Senate met in joint session to count the electoral votes on February 11, 1801. The
tie vote, which had been known wel in advance, was announced, and the House adjourned to its
chamber to begin the contingent election procedure.5 The situation was complicated by the fact

2 T his group was the ancestor of the current Democratic Party, and should not be confused with the contemporary
Republican Party, which emerged in the 1850s, and chose its title as a deliberate reference to Jeffersonia n roots.
3 C. James T aylor, “T he Campaign and Election of 1796,” University of Virginia, Miller Center, at
https://millercenter.org/president/adams/campaigns-and-elections.
4 Jefferson and Burr, as noted, each received 73 electoral votes. Adams received 65, his running mate, Charles C.
Pinckney, 64, and John Jay, one. T he Federalists calculated correctly, at least as far as ensuring that their presidential
candidate received more electoral votes than the vice presidential nominee.
5 Article II, Section 1, clause 3 of the Constitution directed that in the event of a tie, the House would “immediately
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that the count session was conducted by the lame-duck Sixth Congress, in which the Federalists
controlled the House of Representatives. After the extremely bitter campaign, certain Federalist
Members were inclined to vote for Burr to thwart Jefferson. At the same time, some Jefferson
supporters threatened to take up arms if he were denied the presidency. Alarmed equal y by
threats of violence and the prospect of Burr as President, Alexander Hamilton, former Treasury
Secretary and a senior Federalist leader, intervened. He urged Federalist Representatives to put
aside partisan rancor in favor of the national interest and vote for Jefferson.6
The first round of voting revealed that Hamilton’s appeal had had limited effect: a number of
Federalists had voted for Burr, leading to deadlock. Of 16 state delegations in the House, 8
supported Jefferson, 6 Burr, and 2 were divided—the votes of 9 states would be necessary to
elect. Nineteen bal ots were cast the first day, and the House returned to cast an additional 15 on
February 12, 13, 14, and 16 (February 15 fel on a Sunday in 1801), but the state results remained
unchanged. Meanwhile, behind the scenes, negotiations continued to break the impasse. On
Tuesday, February 17, the House cast a 35th bal ot, which showed the same results as the
preceding 34, but on the next round, a Federalist Burr supporter from Vermont cast a blank bal ot,
swinging that state into Jefferson’s column and delivering him the presidency. With the shift in
momentum, the previously divided Maryland delegation also switched to Jefferson, while Burr
supporters Delaware and South Carolina changed their votes, moving those states from Burr into
the divided column. The final tal y was Jefferson, 10 states, and Burr, 4, with 2 states divided.7
Congress Responds: The 12th Amendment
By the time the Seventh Congress convened, support was spreading for a constitutional
amendment that would establish a separate electoral vote for President and Vice President.
Federalist opposition prolonged debate over the proposal, delaying approval until the first session
of the Eighth Congress, which convened on October 17, 1803, but on December 9 of that year the
amendment was submitted to the states. The ratification process proceeded with notable speed for
an era characterized by poor communications and state legislative sessions that were both short
and infrequent. By July of 1804, 13 of the 17 states then in the Union8 had ratified the proposal,
and on September 25 of that year, Secretary of State James Madison declared the new 12th
Amendment to be ratified, so that it was in effect for the 1804 presidential election, which
followed within weeks.9
The Amendment made important changes in electoral college procedures. First, the electors
continued to cast two votes, but they would henceforth cast separate bal ots for President and

chuse by Ballot one of them for President.” “Immediately” was interpreted by t he House to mean that it should proceed
to contingent election without delay and to the exclusion of other business.
6 T he dubious character of Aaron Burr seems to have dominated considerations after the election. While his brilliance
was conceded, he was widely regarded as ambitious and cynical—one of the reasons some Federalist Representatives
supported him was their hope that he would govern as a Federalist. Even his running mate, T homas Jefferson, is
considered to have distrusted Burr. T he fact that Ham ilton was willing to endorse Jefferson, his political arch -enemy,
speaks to the level of his anxiety over the prospect of a Burr presidency. See Lucius Wilmerding, The Electoral College
(New Brunswick, NJ: Rutgers University Press, 1958), pp. 31 -32.
7 States for Jefferson on the final ballot: GA, KY, MD, NC, NJ, NY, PA, T N, VA, and VT ; for Burr: CT , MA, NH, and
RI; divided: DE and SC.
8 Ohio had joined the Union in 1804, raising the total number of states to 17.
9 Sanford Levinson, “T he 12th Amendment,” Interactive Constitution, the National Constitution Center, at
https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171. For state ratification
dates, see “Ratification of Constitutional Amendments,” U.S. Constitution.net, at https://www.usconstitution.net/
constamrat .html#Am12.
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Vice President, one vote for each office. This change was an implicit c oncession to the prevalence
of unified party tickets for the two offices. Second, a majority was stil required to win both
positions, but reflecting the separation of votes for the two offices, it would be a majority of
electoral votes, rather than electors. Contingent election procedures were retained largely intact,
aside from two revisions. First, the amendment eliminated the provision that the electoral college
runner-up would be Vice President; contingent election for that office was transferred to the
Senate. Second, it reduced the number of presidential candidates eligible for consideration by the
House in a contingent election from five to three.10 Final y, it established the same qualifications
for Vice President as for President. Qualifications for the vice presidency had been deemed
unnecessary by the Convention, since al contenders were candidates for the presidency, and were
therefore required to meet that position’s standards.
In one sense, the 12th Amendment has been a substantial success: its separation of presidential and
vice presidential bal ots has guaranteed that there wil never be an exact repeat of the 1800
election. Much of the electoral stability achieved in the ensuing two centuries may also be
attributed to the domination of American presidential politics by the two-party system, which was
implicitly sanctioned in the amendment. Notwithstanding the complaints of would-be minor party
or independent candidacies, the two-party system, in conjunction with the winner-take-al system
of awarding electoral votes, general y delivers an electoral college majority to one ticket. One
potential drawback is that it has also tended to deter presidential bids by independent candidacies
or new parties, for better or worse.11 Contingent elections have been conducted only twice since
ratification of the 12th Amendment: for President in 1825, following the election of 1824; and for
Vice President in 1837, following the election of 1836.
Notwithstanding its demonstrated success, the amendment remains in place as a fal back in the
event of electoral college deadlock, and although such an event is arguably improbable, there is,
as noted earlier, a range of circumstances that might lead to contingent election, including the
following:
 three or more candidates (tickets) split the electoral vote so that none receives a
majority;
 “faithless” electors in sufficient numbers either cast blank bal ots or vote for
candidates other than those to whom they are pledged so as to deny a majority to
any ticket or candidate; or
 the electoral college ties at 269 votes for each candidate (ticket).
Implementing the 12th Amendment: Contingent
Elections Since 1804
As noted previously, Congress has conducted contingent elections twice since the 12th
Amendment was ratified. The first instance occurred in 1825, following the presidential election
of 1824. In this election, four candidates split the electoral vote for President, requiring
contingent election in the House of Representatives. In the second case, the Senate elected the

10 T he original provision for five candidates in contingent election further reflected the founders’ failure to anticipate
the bipolarity of the American two-party system. Rather, they assumed that presidential elections would be contested
by more numerous regional candidates.
11 For additional information on these and other contemporary characteristics of the electoral college system, please
consult CRS Report RL32611, The Electoral College: How It Works in Contem porary Presidential Elections, by
T homas H. Neale.
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Vice President in 1837, when no candidate for the second office received a majority of electoral
votes in the 1836 election.
1824/1825: Contingent Election of the President in the House of
Representatives
The presidential contest of 1824 was a milestone election in that the revolutionary generation, the
“greatest generation” of that epoch, passed from the scene as James Monroe retired from the
presidency. The patrician ascendancy of the republic’s first decades, when Virginia planters held
the presidency for eight of the first nine terms, was giving way to a more democratic, rough-and-
tumble political milieu. One contributing development was the increasing influence of the new
states of the west and southwest, in which frontier cultures were less deferential to the established
order. At the same time, states throughout the Union continued to liberalize their voter
requirements, leading to rapid growth in the electorate as property and income qualifications were
dropped, at least for white males. Moreover, the democratization trend also extended to the
electoral college: for the election of 1800, in 10 of 16 states the legislature picked electors, with
no popular vote at al . By 1824, the number of states had grown to 24, of which 17 used some
form of popular vote for presidential electors.12 In fact, 1824 is the first presidential election for
which reasonably complete popular vote election results are available.
By 1824, the Federalists had shrunk to a regional rump party, confined largely to New England;
the party had not nominated presidential candidates in either the 1820 or 1824 elections. Since
1800, the Democratic Republicans, directly descended from the Jeffersonians, had controlled the
presidency and both houses of Congress for over two decades. Throughout this period, the party’s
presidential nominees general y emerged by consensus, and were proposed by the Democratic
Republican congressional caucus. Moreover, for the succession elections of 1808 and 1816, the
caucus nominated the incumbent Secretaries of State, James Madison and James Monroe, as the
party’s choice for President. By this reasoning, Monroe’s Secretary of State, John Quincy Adams,
son of the second President, was the logical nominee, but in 1824, no fewer than three other
candidates presented themselves, leading to multiple nominations by the contending factions.
These included Adams; Treasury Secretary Wil iam Crawford, another establishment favorite;
Senator Andrew Jackson, hero of the Battle of New Orleans and a favorite son of the emerging
western states; and House of Representatives Speaker Henry Clay, also a western favorite, and
one of the ablest politicians of the day.
As the election results became known late in 1824, it was clear that the contest had resulted in an
electoral college deadlock. Andrew Jackson won a clear plurality of both popular and electoral
votes, but failed to gain the constitutional y-required electoral vote majority of 131 (out of 261).
For the record, Jackson won 99 electoral votes, Adams followed with 84, Crawford was next with
41, and Clay came in last with 37.13 Under the 12th Amendment, Jackson, Adams and Crawford,
the top three electoral vote getters, were considered by the House, and Clay, the fourth candidate,
was excluded by the terms of the amendment.
Although Clay was out of the running, as House Speaker he wielded great influence, and
ultimately threw his considerable support to Adams. This led to charges by Jackson partisans that

12 Neal R. Peirce and Lawrence B. Longley, The People’s President, The Electoral College in American History and
the Direct Vote Alternative, revised edition (New Haven, CT : Yale University Press, 1981), p. 247.
13 For the record, Jackson received 152,933 popular votes; Adams, 115,696; Crawford, 46,979; and Clay, 47,136. See
Peirce and Longley, The People’s President, p. 241.
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Clay had offered his backing in return for the promise of a high office in an Adams
administration—a “corrupt bargain,” as they termed it. Clay’s approval was regarded as an
important boost to the New Englander’s chances, however, and when contingent election was
conducted in the House on February 9, 1825, Adams was chosen on the first bal ot, with 13 state
votes to Jackson’s seven, and four for Crawford.14
Eleven days later, Adams announced that Clay would be his Secretary of State, giving fresh
credence to the “corrupt bargain” charge. Adams and Clay always denied it, but true or not, the
charge overshadowed the Adams presidency. It both enraged and energized Jackson and his
supporters, who started planning the Tennessean’s next presidential campaign immediately. Four
years later, Jackson won the rematch, soundly defeating Adams in the 1828 election.15
1836-1837: The Senate Elects the Vice President
Just 12 years after the contentious presidential election of 1824, the Senate was cal ed on to elect
the Vice President for the first and only time to date.
In 1836, Vice President Martin Van Buren was the Democratic Party’s choice to succeed retiring
President Andrew Jackson. The party’s national convention16 also nominated Representative
Richard Mentor Johnson for Vice President. The opposition Whig Party, successor to the departed
Federalists, was unable to agree on a single candidate for either President or Vice President,
fielding four candidates for the highest office, and two for the vice presidency. In the general
election, Van Buren won just a slight popular vote majority, but took a commanding lead of 170
electoral votes to the 124 cast for the several Whig candidates. Johnson, however, won 143
electoral votes, five short of a majority, thus requiring a contingent election in the Senate.17 The
electoral votes were counted by the 24th Congress at the traditional joint session on February 8,
1837, at which time the Senate immediately returned to its own chamber to elect the Vice
President. Since the Senate’s choice was limited by the 12th Amendment to the two candidates
who won the most electoral votes, rather than three, as required for presidential contingent
elections, it chose between Johnson and his leading Whig opponent, Representative Francis
Granger. Johnson was elected by voice vote in one round, with 33 votes to 16 for Granger.18
Contingent Election of the President: Constitutional
Requirements and 1825 House Procedures
Rules governing contingent election of the President in the House of Representatives may be
divided into two categories: constitutional requirements and procedures adopted by the House to

14 States for Adams: CT , IL, KY, LA, MA, MD, ME, MO, NH, NY, OH, RI, VT ; states for Jackson: AL, IN, MS, NJ,
PA, SC, T N; states for Crawford: DE, GA, NC, VA.
15 For a more detailed account of the election, see T heodore G. Venetoulis, The House Shall Choose, (Margate, NJ:
Elias Press, 1968).
16 T his was the second Democratic National Convention, the first having been held in 1832.
17 Virginia’s 23 Democratic electors refused to cast their votes for Johnson as a protest against his long-time common
law marriage to Julia Chinn, an African American slave, a relationship he openly acknowledged. T he Virginians
instead cast their votes for William Smith, a former Senator. See University of Virginia, Miller Center, “Richard M.
Johnson (1837-1841)-Vice President,” at http://millercenter.org/president/essays/johnson-1837-vicepresident .
18 Congressional Globe, vol. 4, no. 11, February 8, 1837, p. 166, at https://memory.loc.gov/cgi-bin/ampage?collId=
llcg&fileName=003/llcg003.db&recNum=181.
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“flesh out” the rules for its 1825 contingent election. In addition, the House in 1825 made certain
other procedural decisions that were not dictated by the 12th Amendment.
Constitutional Requirements
The 12th Amendment sets certain requirements for contingent election in the House of
Representatives, as follows.
The Three-Candidate Limit
The Amendment limits the number of presidential candidates eligible for consideration by stating
that if no candidate receives a majority of electoral votes, then the House shal choose the
President “from among the persons having the highest numbers [of electoral votes] not exceeding
three.... ” In the contemporary context, it is unlikely, but not impossible that more than three
presidential candidates would gain electoral votes. The most recent presidential election in which
a “third party” presidential candidate gained any electoral votes, aside from a scattering of
faithless electors, was 1968, when American Independent Party candidate George C. Wal ace
received 46.19
Voting “Immediately” and “by Ballot”
The 12th Amendment next provides that the House “shal choose immediately, by bal ot ... the
President.” Most observers agree that the first part of this clause—“immediately”—requires that
the House must literal y proceed to the contingent election without any delay.20 It should also be
noted that the rules adopted for contingent election in 1825 required the House to “bal ot for a
President, without interruption by other business, until a President be chosen.”21
The meaning of voting “by bal ot” has been debated over the years. At the time of the 1801 and
1825 contingent elections, this was interpreted as requiring a secret, paper bal ot, and a two-stage
process. In 1825, each state delegation was provided with a dedicated bal ot box for its internal
voting, while two additional general election bal ot boxes were provided for the plenary voting by
the states. In the two-round system, the state delegates would first cast their internal bal ots; they
would then mark the state results on two additional secret bal ots, and deposit one in each of the
two general bal ot boxes.
Quorum Requirements
The 12th Amendment states that “a quorum for this purpose [contingent election of the President]
shal consist of a member or members from two thirds of the states.. . ” In the contemporary
context, this would require one or more Representatives from 34 of the 50 states.

19 Although faithless electors could cause an electoral college deadlock, this would be very unlikely, except in the event
of a very close election in the electoral college or some event causing a mass defection. T hirty -three states and the
District of Columbia have laws or party regulations in place that require electors to vote for the people’s choice in their
state; in some states faithless electors may be replaced or may be subject to various penalties. In addition, the Supreme
Court’s 2020 decision that state laws penalizing or replacing faithless electors are constitutionally valid could provide
additional deterrence. For further information and a legal analysis, see CRS Legal Sidebar LSB10515, Suprem e Court
Clarifies Rules for Electoral College: States May Restrict Faithless Electors, which explains the Court’s decision and
reviews its broader implications.
20 Wilmerding, The Electoral College, p. 205.
21 Asher C. Hinds, Hinds’ Precedents of the House of Representatives, vol. III (Washington: GPO, 1907), §1983-1984.
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House Procedures in 1825
In common with other parts of the Constitution, the 12th Amendment established a framework for
a particular procedure but left many details to the discretion of Congress. In the case of
contingent election of the President, the House fleshed out the constitutional requirements with a
package of supplementary procedures. These rules, which were drafted by a select House
committee composed of one Member from each state, may be summarized as follows:22
 The Speaker of the House of Representatives was designated as presiding officer
for the contingent election. This had also been the case in 1801.
 As noted previously, the “voting by bal ot” stipulation requirement was
interpreted in 1825 as requiring the use of secret paper bal ots.
 For the first round vote, within state delegations, a majority of state delegation
Members present and voting was required to cast the state vote. If a majority was
obtained, the name of the preferred candidate was written on the second round
bal ot. If there was no majority, the second round state bal ot was marked
“divided.”
 The House met in closed session: only Representatives, Senators, House officers,
and stenographers were admitted. It is worth noting, however, that despite the
precautions of a closed session and secret bal ots, the votes not only of state
delegations, but of individual Members, were widely known soon after the 1825
contingent election, and subsequently reported in the press.
 Motions to adjourn were entertained only when offered and seconded by state
delegations, not individual Representatives.
 State delegations were physical y placed in the House chamber from left to right,
beginning at the Speaker’s left, in the order in which the roll was cal ed. At that
time, the roll began with Maine, proceeded north to south through the original
states to Georgia, and concluded with subsequently admitted states, in order of
their entry into the Union.
Contingent Election of the Vice President:
Constitutional Requirements and Senate Procedures
in 1837
The 12th Amendment’s requirements for contingent election of the Vice President are less
complex than those for the House in the case of the President. It prescribes only the quorum
necessary to conduct the election, two-thirds of the whole number of Senators (67 of 100 at
present, assuming there are no vacancies), and the margin necessary to elect the Vice President, a
majority of the whole number of Senators (51 at present, again assuming there are no vacancies).
Some constitutional requirements for the House do not appear in contingent election procedures
for the Senate. For instance, there is no requirement that the Senate vote “by bal ot.” In 1837, the
Senate decided that the election would be by voice vote—viva voce. The roll was cal ed in

22 Ibid., vol. 3, pp. 291-294.
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alphabetical order, at which time each Senator named the person for whom he voted.23 Further,
there is no language requiring the Senate to vote “immediately,” to the exclusion of other
business. In 1837, this presented no problem, as the likely result was known wel in advance, and
Richard Mentor Johnson was elected with a comfortable majority. It is unclear whether the Senate
conducted its 1837 contingent election behind closed doors, but neither the Senate Journal nor
the Register of Debates in Congress entries for the session stated that the gal ery was closed, so it
may be assumed that spectators from the House and the general public were present. It is also
interesting to note that President pro tempore Wil iam R. King, rather than outgoing Vice
President Martin Van Buren, presided over the 1837 contingent election.24 Van Buren had
“retired” from duties as President of the Senate on January 28, 1837.25
Contingent Election Modified: The 20th Amendment
and the Presidential Succession Act
The contingent election process was modified twice in the 20th century, first by the 20th
Amendment to the Constitution, which took effect in 1933, and later by the Presidential
Succession Act of 1947.
The 20th Amendment
The 20th Amendment to the Constitution was proposed to the states by Congress on March 22,
1932; the ratification process was completed in less than a year, on January 23, 1933. Section 1 of
the Amendment set new expiration dates for congressional and presidential terms: for Congress,
the date was changed from March 4 every odd-numbered year to January 3; for the President, it
was changed from March 4 to January 20 of every year following a presidential election. The
primary purpose of these changes was to eliminate lame duck post-election sessions of Congress26
and to shorten the period between election and inauguration of the President from four months to
about 10 weeks.
The 20th Amendment was also designed to remove the responsibility for contingent election from
a lame duck session of Congress. The framers of the amendment intended to ensure that the
President would be chosen by the newly elected House of Representatives, and the Vice President
by the newly elected Senate.27 Section 3 of the 20th Amendment also treats contingent election: it
reinforces the 12th Amendment provision that the Vice President (assuming one has been chosen)

23 U.S. Congress, Senate, Journal of the Senate, 24th Cong., 2nd sess. (Washington: Gales and Seaton, 1836 [sic]), pp.
229-230.
24 U.S. Congress, Register of Debates in Congress, vol. 13, pt. 1, 24th Cong., 2nd sess. (Washington: Gales and Seaton,
1837), pp. 738-739.
25 Ibid., p. 618.
26 Lame duck sessions were the result of legislation scheduling congressional sessions that endured from the 18 th
century through 1935. Under this arrangement, the first session of a newly elected Congress did not generally convene
until December of the year after it was elected. T he second session also customarily convened in December of the
following year, after congressional elections for the next Congress had been held. T he result was that a substantial
number of Senators and Representatives who continued their lawmaking role for the three to four months of the second
session had been defeated in the November elections, or had announced their retirement. Exceptions to this scheduling
practice included special sessions of Congress, and special Senate sessions traditionally held when a new President
took office for the primary purpose of considering his nominations to Cabinet and other federal a ppointive offices.
27 U.S. Congress, Senate Judiciary, Report to Accompany S.J. Res 14, 72nd Cong., 1st sess., S.Rept. 26 (Washington:
GPO, 1932), p. 4.
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acts as President in the event the House is unable to elect a President in the contingent election
process by the time the presidential term expires. Section 3 also empowered Congress to provide
by law for situations in which neither a President nor a Vice President qualified.
The Presidential Succession Act of 194728
Congress implemented the authority provided in Section 3 of the 20th Amendment when it passed
the Presidential Succession Act of 1947, a major overhaul of presidential succession procedures.
The act, which remains in effect, provides that the Speaker of the House would act as President
during situations in which neither a President nor Vice President has qualified, and would
continue to do so until the situation is resolved or the term of office expires.29 If there is no
Speaker, or if the Speaker does not qualify, then the President pro tempore of the Senate acts as
President. Before being sworn as “acting” President, either officer would be required to resign
their leadership offices and membership in their respective chambers. If both the Speaker and
President pro tempore were to decline the office, or fail to qualify for any reason, then the acting
presidency would devolve on the head of the most senior executive department, provided that
officer is constitutional y qualified,30 has been regularly nominated by the President, and has been
confirmed by the Senate. According to the act, by taking the oath of office to act as President, a
Cabinet officer would automatical y vacate the Cabinet position, thus avoiding the constitutional
prohibition against dual office holding.31
Both the Succession Act and the 20th Amendment specifical y limit the service of a person acting
as President under such circumstances: he or she holds office only until either a President or Vice
President has qualified.
Contingent Election of the President: Contemporary
Analysis
Almost two centuries have passed since the House of Representatives last elected a President of
the United States, and nearly as long since contingent election of a Vice President. What are some
of the factors the House or Senate might consider should either chamber—or both—be cal ed on
to perform this function in the contemporary context?
The 1825 House Procedures: To What Extent Would They Be
Applicable in the Contemporary Context?
Many of the decisions reached in 1825 applied only to the rules under which the House of
Representatives conducted contingent election in that specific instance, and in that particular year.
Although they may arguably provide a point of reference for the House in any future application

28 61 Stat. 380. T he Succession Act as amended is codified at 3 U.S.C. 19.
29 Prior to the 1947 act, the Secretary of State had been first in line of succession, following the Vice President, as
prescribed by the Succession Act of 1886 (24 Stat. 1).
30 U.S. Constitution, Article II, Section 1, clause 5: “No person except a natural born Citizen ...shall be eligible to the
Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United States.”
31 For additional information on presidential succession and the role of the Cabinet in this process, please consult CRS
Report R46450, Presidential Succession: Perspectives and Contem porary Issues for Congress, by T homas H. Neale.
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of the contingent election process, they would not be prescriptive, and might wel be subject to
different interpretations.
Committee of Jurisdiction in Contingent Election of the President32
Several committees of the House of Representatives could claim primary jurisdiction of the rules
and regulations governing a contingent election of the President. The existing precedent is not
directly applicable: in both 1801 and 1825, the House voted to establish a select committee to
prepare rules governing contingent election. During this period, the House had a Committee on
Elections, but its authority was restricted to the adjudication of congressional elections.33 A
Committee on election of the President, Vice President and Representatives in Congress was later
established, but its authority was ultimately transferred to the Committee on House
Administration by the Legislative Reorganization Act of 1946. The current House Administration
Committee might assert its authority over the contingent election process on these grounds.34 The
Committee on Rules could also assert at least partial authority on the basis of its jurisdiction over
rules and procedures for the House.35 Final y, the House Committee on the Judiciary might
arguably claim jurisdiction on the basis of its primacy in the area of the Constitution and
presidential succession.36
House Proceedings: Open or Closed?
In both 1801 and 1825, the House conducted contingent election of the President behind closed
doors. In the modern context, however, there would be strong, perhaps irresistible, pressure for a
contingent election session to be open to the public and covered by radio, television, and webcast.
Proponents of an open session would likely note that there is no secrecy requirement for
contingent election sessions in the 12th Amendment, while opponents might assert that the
constitutional gravity of the contingent election process requires both confidentiality and the free
exchange of debate that a closed session would facilitate.
Individual Members’ Votes and State Delegation Votes: Confidential or
Public?
Similarly, there would likely be strong demands that the votes of individual Representatives in the
first round of the election, that which occurs within state delegations, be made public. This
position could be justified on the grounds that the 12th Amendment’s instruction that voting be
“by bal ot,” and therefore secret, applies only to the votes of the states in the second round, and
not to Members as they vote within their state delegations. Taking this assertion to the next level,
it could be further argued that the entire process should be open to the public. Advocates might
suggest that the amendment’s language is not prescriptive, that the phrase “by bal ot” could just
as easily be interpreted as meaning by paper bal ot, but not necessarily a secret bal ot. They could
argue the position that a decision of such great constitutional consequence should be made in the

32 T he author extends his thanks to Richard S. Beth, retired Specialist on the Congress and Legislative Process, for his
assistance in preparing this section.
33 Hinds, Hinds’ Precedents of the House of Representatives of the United States, vol. IV, §4301-4303.
34 U.S. Congress, House, Constitution, Jefferson’s Manual and Rules of the House of Representatives, 114th Congress,
H.Doc. No. 113-181 (Washington: GPO, 2015) “ Rules of the House of Representatives,” (Committee on House
Administration), Rule X(1)(k)(12).
35 Ibid., [House] Committee on Rules, Rule X(1)(o)(1).
36 Ibid., [House] Committee on the Judiciary, Rule X(1)(l)(6) and X(1)(l)(15).
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bright light of public awareness, and that both individual Representatives and state House
delegations should be fully accountable for their votes.
In opposition, defenders of a secret bal ot might assert that this was the original intent of the 12th
Amendment’s authors, and that an open bal ot might subject Representatives to attempts to
influence their votes by pressure, subvention, or perhaps even threats from outside sources. They
might also note that the same sanctity of the secret bal ot enjoyed by ordinary citizens in the
voting booth should extend to Representatives—or states—in a contingent election.
Plurality or Majority Voting Within State Delegations?
Another precedent from 1825 that might be open to question was the House’s decision to require
a majority vote within a state delegation during the first round among the state’s Representatives
in order to cast that state’s vote in the second round. States that failed to reach a majority within
the delegation were required to mark their bal ots as “divided.” This requirement does not appear
in the Constitution, and the question could be raised as to whether the House can legitimately set
a plurality requirement for the first round of voting.
In favor of the original provision, it may be argued that the majority requirement echoes the
electoral college, which requires that a candidate receive a majority of votes nationwide in order
to be elected.
Conversely, a first-round plurality requirement might be justified on the grounds that 48 states
and the District of Columbia require only a plurality of popular votes to win al the state’s
electoral votes.37
During the 1980 presidential election,38 a memorandum on the subject of contingent election by
Representative Martin Frost suggested that the Constitution did not specify either a majority or
plurality requirement within state delegations, and summarized policy arguments on both sides of
the question.39
The Role of the Representative in Contingent Election
Representatives participating in a contemporary contingent election of the President would be
cal ed on to perform a function of great constitutional significance. They might wel be subject to
competing demands as to how they should vote. While the 12th Amendment is silent on the
constitutional duties of individual Members in this situation, several alternative positions were
identified and debated in the House during its consideration of contingent election arrangements
in 1825. The concerns voiced by the Representatives of that era would be arguably similar to
those faced by their modern-day counterparts.
 Some Representatives asserted in 1825 that notwithstanding the silence of the
12th Amendment, it was the duty of the House to elect the candidate who had won

37 Maine and Nebraska use a congressional district system to award electoral votes. For additional information, please
consult CRS Report RL32611, The Electoral College: How It Works in Contem porary Presidential Elections, by
T homas H. Neale.
38 T he 1980 presidential election was contested for the major parties by incumbent Democratic President Jimmy Carter,
and his Republican challenger, former California Governor Ronald Reagan. It also included a viable independent
candidacy by Representative John Anderson. Anderson’s high levels of popular support, especially early in the general
election campaign, seemed to some observers to foreshadow an electoral college deadlock.
39 “Congressman Martin Frost’s Memorandum on the Election of the President in the House of Representatives,”
Congressional Record, vol. 138 (June 22, 1992), p. 15692.
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the most popular and/or electoral votes, and who was the choice of at least a
plurality of the voters and electors.
 Others suggested that Members ought to give prominence to the popular election
returns, but should also consider themselves at liberty to weigh the comparative
merits of the candidates before them.
 Stil another alternative was presented suggesting that contingent election was a
constitutional y distinct process, triggered by the failure of both the voters and
the electoral college to arrive at a majority decision. The contingent election, its
supporters reasoned, was an entirely new event in which individual
Representatives were free to consider the merits of contending candidates
without reference to the earlier contest.40
These alternatives debated in the House in 1825 might arguably carry less weight in the 21st
century, in an era when the ideal of majoritarian democracy is almost universal y honored, if not
always perfectly respected. Nevertheless, House Members could consider a range of options,
which might arguably claim legitimacy; in choosing among them, they could cite Edmund
Burke’s famous defense of the elected representative’s right to exercise individual judgment,
“Your representative owes you, not his industry only, but his judgment; and he betrays instead of
serving you if he sacrifices it to your opinion.”41 Representatives might weigh the following
options, considering whether they should vote for:
 The candidate who won a nationwide plurality or majority of the popular vote.
As noted previously, this choice would have a strong claim on the grounds of
fairness and democratic principles.
 The candidate who won a plurality of electoral votes. A Member choosing this
person could justify the decision on the grounds that it respects the electoral
college provisions of the Constitution and the concept presidential election as a
combined national and federal process in which the electors have a
constitutional y mandated role.
 The winner in the Member’s state or district. Here, a Representative could argue
that the freely expressed choice of the voters he or she represents—on either the
state or district level—are deserving of respect and deference.
To these competing, but related claims of “equity,” “acceptance of the people’s choice,” and state
or local preferences, might be added further alternatives, such as the following. A Member might
also considering voting for:
 The candidate of the Member’s party. Party loyalty and agreement with the
platform and principles of the Representative’s own party could make a
legitimate claim for his or her vote.
 The Member’s personal preference. A Representative, citing Burke, and trusting
his eventual electoral fate to the ultimate judgment of his fel ow citizens, might
also cite personal preference, trust, and shared principles as justification for a
particular vote in contingent election.

40 See House debate at “Election of President,” Register of Debates in Congress, February 2-3, 7-8, 1825, pp. 420-434,
443-461, 490-516, at https://www.loc.gov/rr/program/bib/elections/election1824.html.
41Edmund Burke, “Speech to the Electors of Bristol,” November 3, 1774, in Familiar Quotations ... by John Bartlett,
Emily Morison Beck, ed. 14th ed. (Boston: Little, Brown and Co.), 1968, p. 452.
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These and other factors would arguably cal for a serious examination of the alternatives, not only
by and among individual Members, but also in open debate on the floor of the House. While the
12th Amendment, as noted previously, requires a vote “by bal ot” in contingent election of the
President, it does not prohibit Representatives from announcing how —and why—they cast their
votes. Such a colloquy might emerge as one of the most dramatic and portentous deliberations in
either chamber in the long history of congressional debate. In the modern context, it would
certainly be the subject of unprecedented publicity, examination, and commentary in the press
and broadcast and Internet media.
The Role of the District of Columbia
Although the 23rd Amendment empowers citizens of the District of Columbia to vote in
presidential elections, where it casts three electoral votes, it makes no mention of the contingent
election process. The District is thus not considered a state for the purposes of contingent
election, and its Delegate to Congress would therefore not participate in the contingent election of
either the President or Vice President.42
Contingent Election of the Vice President:
Contemporary Analysis
The 12th Amendment, as noted earlier, imposes fewer procedural demands on the Senate in its
language establishing contingent election of the Vice President than it does on the House of
Representatives. The comparative simplicity of the process would thus arguably require fewer
process-driven decisions by the Senate if it were cal ed on to elect a Vice President today. As
noted earlier in this report, in 1837, the roll was cal ed and the Senators declared their preference
viva voce—by voice vote. Further, it is likely that the proceedings were open to the public, since
neither the Register of Debates in Congress nor The Journal of the Senate provides any indication
that the gal eries were cleared, or that the Senate otherwise met in closed session. For the Senate,
therefore, historical precedent appears to support, but does not mandate, a voice vote in open
session.
In the Senate, proposals relating to procedures for contingent election of the Vice President would
likely be referred to the Committee on Rules and Administration. Under the Rules of the Senate,
this committee has jurisdiction over both “congressional ... rules and procedures, and Senate rules
and regulations, including floor ... rules,” and “Federal elections general y, including the election
of the President [and] Vice President.... ”43 The Senate customarily refers each measure in its
entirety to the committee with predominant jurisdiction over the subjects in the legislation. As in
the House, the Senate Committee on the Judiciary has jurisdiction over constitutional
amendments, and would presumably receive proposals for constitutional change in this area.44

42 Alessandra DeSanctis, “What Happens If Neither T rump not Biden Wins the Electoral College? National Review,
September 9, 2020, at https://www.nationalreview.com/2020/09/what -happens-if-neither-trump-nor-biden-wins-the-
electoral-college/.
43 Senate Rule XXV, paragraph 1(n)2 and 1(n)5. In U.S. Congress, Senate, Senate Manual, prepared by Matthew
McGowan, under the direction of Kelly L. Fado, Staff Director and Chief Counsel, Committee on Rules and
Administration, S. Doc. 113-1, 113th Cong., 1st sess. (Washington: GPO, 2014).
44 Richard S. Beth, retired Specialist on Congress and the Legislative Process, Government and Finance Division,
Congressional Research Service, prepared this paragraph.
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Proposed Changes to Contingent Election
During the 108th through 110th Congresses, constitutional amendments were proposed that would
have changed House of Representatives voting in a contingent election of the President. In
addition, contingent election has traditional y figured indirectly in most proposals to reform the
electoral college or establish direct popular election. Direct popular election would eliminate
contingent election and effectively repeal the 12th Amendment.45
With respect to changing contingent election, the most recent proposals were introduced in the
110th Congress by Representative Brad Sherman (H.J.Res. 73), and Representative Virgil H.
Goode Jr. (H.J.Res. 75). Both resolutions proposed a fundamental change in contingent election
of the President. Instead of each state casting one vote, each Representative would cast a vote.
The person receiving the greatest number of votes would be elected, provided that this number
constituted a majority of votes cast.
The only difference between the two proposals centered on quorum requirements for the House in
contingent election sessions. H.J.Res. 73 would have changed the 12th Amendment’s quorum, “a
member or members from two-thirds of the states” to “a majority of the House.” By comparison,
H.J.Res. 75 proposed a higher threshold for contingent election: “two thirds of the members of
the House shal constitute a quorum.” The evident purpose of these provisions was to ensure that
a majority (H.J.Res. 73) or a super majority (H.J.Res. 75) would be present for a contingent
election. The 12th Amendment’s existing quorum requirement of a Member or Members from
two-thirds of the states is markedly less rigorous; in fact, it would be theoretical y possible to
hold a contingent election session under the present arrangements with as few as 34 Members
present.46 The argument favoring this change is straightforward: since contingent election of the
President is one of the most constitutional y significant functions assigned to the House of
Representatives, it is appropriate that the largest possible number of Members be present for this
session.
Perhaps the most important element in both proposals was the proposed elimination of state
equality in the contingent election process for the President. Instead of each state casting a single
vote, each Representative would cast one vote. The change in comparative state voting power in a
contingent election would be dramatic. For instance, Wyoming and California, respectively the
nation’s least and most populous states, would no longer cast one vote each; instead, under the
proposed formula, Wyoming would cast one vote in a contingent election, but California would
cast 53, one for each Member of its House of Representatives delegation. The argument here is
that the change in formula would be more democratic, reflecting the great differences in
population among the states.
Arguments against these proposed amendments could center on the assertion that either one
would weaken the federal nature of the existing contingent election process, in which each state
casts a single vote. Moreover, it might be noted the contingent election process for both executive
officers is roughly symmetrical, with al states having the same weight in election of the President
in the House and the Vice President in the Senate. Why, they might ask, change the formula for
election of the President, while that for the Vice President remains unchanged? Logic , they might

45 For additional information, see CRS Report R43824, Electoral College Reform: Contemporary Issues for Congress,
by T homas H. Neale.
46 If 34 Representatives, one from each of 34 states, were present, the 12 th Amendment quorum requirement would be
fulfilled.
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assert, suggests that the same population-based formula be established for the contingent election
of both executive officers.
Both H.J.Res. 73 and H.J.Res. 75 were referred to the House Committee on the Judiciary, but no
further action was take on either measure before the 110th Congress adjourned. No similar
proposal has been introduced since that time.
Concluding Observations
American presidential elections have general y been dominated by two major parties since the
early 19th century, with major party candidates for President and Vice President having won a
majority of electoral votes in every election since 1836. A popular third party or independent
candidacy, however, has always had the potential of disrupting this traditional rhythm. While they
seldom have a realistic expectation of winning the presidency, such efforts carry with them the
potential for denying either major party ticket a majority in the electoral college. Such
candidacies have, in fact, emerged in four presidential elections since 1968.47 Another possibility
involved the contest over election results in Florida in the closely fought 2000 presidential
election; the extended political struggle about which candidate won the state raised the possibility
that its electoral votes might be chal enged and excluded by Congress, an action that would have
denied either candidate a majority of electoral votes, thus requiring contingent election.
Under either of the scenarios cited above, the House and Senate could be cal ed on to choose the
President and Vice President in some future election. Barring any comprehensive reform of the
existing arrangements, a contingent election would be governed by the provisions of the 12th
Amendment and such other supplementary procedures as the House and Senate would establish.
Rules adopted for past contingent elections would offer guidance, but would not be considered
binding in any future contingent election.
As previously noted, constitutional amendments that would substitute direct popular election and
thus eliminate the contingent election process were regularly introduced in Congress through the
first decade of the 21st century,48 but these experienced the fate of the vast majority of proposed
amendments: assignment to the appropriate committee, and then, oblivion. By design of the
founders, the Constitution is not easily amended; the stringent requirements include passage by
two-thirds vote in both chambers of Congress, followed by approval by three-fourths of the states,
general y within a seven-year time frame.49 These constraints have meant that successful
amendments are usual y the products of several factors, including, but not limited to the
following:

47 In 1968, former Alabama Governor George C. Wallace was the candidate of the American Indep endent Party.
Representative John Anderson ran as an Independent candidate for President in 1980. Industrialist H. Ross Perot
mounted two candidacies for President, as an Independent in 1992, and as candidate of the Reform Party in 1996.
48 T he most recent proposal was H.J.Res. 36, introduced in the 112th Congress on February 28, 2011, by Rep. Jesse
Jackson Jr. T he resolution was referred to the Subcommittee on the Constitution of the House Judiciary Committee, but
no further action was taken.
49 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. For further information, see CRS Report R42592, The Article V
Convention for Proposing Constitutional Am endm ents: Historical Perspectives for Congress, by T homas H. Neale;
CRS Report R42589, The Article V Convention to Propose Constitutional Am endm ents: Contem porary Issues for
Congress, by T homas H. Neale; and CRS Report R44435, The Article V Convention to Propose Constitutional
Am endm ents: Current Developm ents, by T homas H. Neale.
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 a broad national consensus, arrived at after lengthy debate, sometimes measured
in decades, that an amendment is necessary and desirable, e.g., the 17th
Amendment (direct election of Senators), and the 24th Amendment (the 18-year-
old vote); or
 an equal y broad, but in this case urgent, consensus demanding a response to a
galvanizing event or events, e.g., the 12th Amendment itself, and the 25th
Amendment (providing for presidential succession and disability, in the wake of
the 1963 assassination of President John F. Kennedy); and
 the active and persistent support and guidance of prominent members, relevant
committee chairs, and chamber leaders in both houses of Congress.
The time and energy of Congress is limited, and the institution must pick and choose from among
the most pressing demands for its attention. Would-be constitutional amendments sharing one or
more of the characteristics noted above are far more likely to reach “critical mass,” and meet the
political and constitutional hurdles faced by such proposals. Failing in that, it seems more likely
that existing provisions, such as contingent election, which has been unused since 1837, wil
remain unaltered unless or until their al eged failings become so compel ing that the necessarily
large majorities among the public and in Congress and the states are prepared to undertake
reform.

Author Information

Thomas H. Neale

Specialist in American National Government

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