Order Code RS20300
Updated January 17, 2001
CRS Report for Congress
Received through the CRS Web
Election of the President and Vice President
by Congress: Contingent Election
Thomas H. Neale
Analyst in American National Government
Government and Finance Division
Summary
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, and the Vice President is elected by the Senate. This process
is referred to as contingent election. It has occurred only twice since the adoption of the
12th Amendment in 1804: for President in 1825, and for Vice President in 1837. In the
House, the President is elected from among the
three candidates who received the most
electoral votes. Each state casts a single vote for President, and a majority of 26 or more
state votes is required to elect. In 1825, the House decided that a majority of votes of
Representatives in each state was required to cast the state’s vote for a particular
candidate, or the state’s vote would be forfeit for that round of voting. This and other
decisions reached in 1825 would have precedent, but would not be binding in future
contingent elections. In cases where a state has only one Representative, that Member
decides the state vote. In the Senate, the Vice President is elected from among the
two
candidates for Vice President who received the most electoral votes, with each Senator
casting a single vote. A majority of the whole Senate, 51 or more votes, is necessary to
elect. 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 joint session (held on January 6 of the year
following a presidential election) that counts electoral votes. 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. For additional information on the electoral college,
consult CRS Reports RS20273,
The Electoral College: How it Works in Contemporary
Presidential Elections, and RL30804,
The Electoral College: An Overview and Analysis
of Reform Proposals. This report will be updated if events warrant.
Congressional Research Service ˜ The Library of Congress
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Original Constitutional Provisions
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. 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.1 In the event
of a tie vote, or if no candidate received a vote from a majority of electors, the House of
Representatives elected the President from among the five candidates receiving the most
electoral votes. Voting was by states, with each state casting a single vote.
The 12th Amendment
The system’s deficiencies became disastrously apparent in the election of 1800, when
all Democratic-Republican electors cast one vote each for presidential candidate Thomas
Jefferson and vice presidential candidate Aaron Burr, resulting in a tie, and thus requiring
contingent election in the House when it met to count the electoral votes on February 11,
1801. A constitutional crisis resulted as Burr supporters allegedly sought support from
Federalist Representatives in order to gain the presidency for the vice presidential
candidate.2 Enough Federalists voted for Burr to deny Jefferson a majority in the first
round (the vote was eight states for Jefferson, six for Burr, with two states divided).
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.3
Shocked by the election crisis, Congress, in 1803, proposed a constitutional
amendment designed to prevent any repetition of the events of 1801. State ratifications
followed quickly, and the new, 12th Amendment to the Constitution was declared to be
in effect on September 25, 1804. The amendment’s provisions, which remain in effect,
are summarized as follows.
1The rise of national political parties that nominated candidates for
both President and Vice
President on a joint ticket doomed the arrangement, which did not anticipate such joint candidacies.
In theory, party electors needed to cast one vote for the party presidential candidate, and one for
the vice presidential nominee. In order to avoid tying the electoral vote, however, it was necessary
for one or more electors to withhold his second vote from the designated vice presidential candidate,
a cumbersome arrangement at best.
2The 1800 presidential election was a bitter contest between incumbent President John Adams,
representing the Federalists, and his Vice President, Thomas Jefferson, candidate of the
Jeffersonian-, or Democratic-Republicans. The results were not in doubt: Jefferson and Burr won
73 electoral votes to Adams’s 65 (the Federalist electors had correctly cast one less electoral vote
for their vice-presidential candidate, Charles C. Pinckney, who received 64). Further, the
contingent election was conducted by a lame duck House session of the 6th Congress, which was
controlled by the Federalists. The Democratic-Republicans had gained control of the House in the
1800 congressional elections, but the new 7th Congress did not convene until March 4, 1801.
3Neal R. Peirce and Lawrence D. Longley,
The People’s President: The Electoral College in
American History and the Direct Vote Alternative, rev. ed. (New Haven, CT.: Yale University
Press, 1981), pp. 35-41.
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!
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 votes for each office is elected.
!
If no candidate for President gains a majority, then the House votes
“immediately, by ballot” for President (contingent election), choosing from
among the three candidates who received the most electoral votes.
Contingent election would also apply in the case of an electoral vote tie,
since a tie vote does not produce a majority.
!
A quorum of at least one Representative from two-thirds of the states (34
at present) is necessary for the purposes of contingent election.
!
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), 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)
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) are necessary to elect the Vice President.
The amendment made no attempt address the question of which Congress (lame duck
or newly-elected) would conduct contingent elections in the future. During this period,
electoral votes were cast in January, and counted in February, while congressional and
presidential terms expired on March 4. Thus, in 1801, contingent election was conducted
by the lame duck House of the 6th Congress, as noted elsewhere in this report. Questions
as to the propriety and fairness of this arrangement, by which a Congress controlled by a
party repudiated in the immediately preceding elections could choose the President, seem
not to have occurred to the framers of the 12th Amendment.
Contingent Election in 1825: Philosophy, Procedures, Precedents
The emergence of four major presidential candidates in the 1824 presidential election
led to a fragmentation of the electoral vote, necessitating contingent election of the
President by the House of Representatives in 1825. The dominant Democratic-
Republicans divided into four largely geographical factions, nominating Andrew Jackson,
John Quincy Adams, William H. Crawford, and Henry Clay for President. When no
candidate received the requisite majority of electoral votes, a contingent election was
conducted in the House on February 9, 1825.4 The 18th Congress convened its lame duck
session in December of 1824, by which time it was already apparent that the House would
elect the President, a situation that was complicated by charges from Jackson supporters
4The electoral vote totals for President were: Jackson, 99; Adams, 84; Crawford, 41; and Clay, 37.
Clay was thus eliminated from the contingent election. Curiously, Vice Presidential candidate John
C. Calhoun received an overwhelming electoral vote majority.
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that Henry Clay had agreed to support the Adams candidacy in the House in return for his
appointment as Secretary of State.5 Spirited debate as to the nature and requirements of
contingent election preceded the actual vote. 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
Given Clay’s active support of Adams, the election itself was almost a foregone
conclusion: in contrast with 1801, the House required only one ballot to choose Adams,
who received 13 state votes, to seven for Jackson and four for Crawford.
While most of the 12th Amendment’s provisions are specific, some sections were the
subject of further interpretation when the House conducted contingent election in 1825.
After days of debate, the House adopted rules of procedure for the impending election
that are summarized as follows.
!
The House met in closed session, with only stenographers, House officers,
Representatives, and Senators 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.
!
Each state delegation received a ballot box, and Representatives cast paper
ballots inscribed with the name of the candidate for whom they were
voting. A majority of votes of a state delegation was required to cast a
vote for any candidate; if there was no majority, the vote was declared
“divided” and was forfeit for that round.
!
State votes were determined, the results were recorded on two ballots, and
deposited in duplicate ballot boxes in the House chamber. The contents
were counted by tellers, compared, and reported to the House.7
5Theodore G. Venetoulis,
The House Shall Choose (Margate, NJ: Elias Press, 1968), pp. 130-135.
6U.S. Library of Congress, Congressional Research Service,
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, Typed Report, by Joseph B. Gorman (Washington: Nov. 20, 1980), pp. 13-22.
7U.S. Congress, House,
Hind’s Precedents of the House of Representatives (Washington: GPO,
1907), vol.3, pp. 292-293.
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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.
Contingent Election in 1837
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.8 Electoral votes were counted
on February 8, 1837, in a joint session of the 24th Congress, and the Senate then
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 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. Procedures
adopted by the Senate differed from those of the House in 1825: the roll was called in
alphabetical order, at which time each Senator gave the name,
viva voce, of the person for
whom he voted.9 Johnson was elected in the first round of voting, receiving 33 votes to
16 for Granger.
The 20th Amendment and the Presidential Succession Act of 1947
The contingent election process has been 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.10 Section 3 restates the 12th Amendment provision that the Vice President 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, or, alternatively, the President
pro tempore of the Senate in the event the
8Van Buren won 170 electoral votes to 124 for four Whig candidates; Johnson took 147, while
independent Democrat William Smith won 23, and two Whig candidates won 124.
9U.S. Congress, Senate,
Journal of the Senate, 24th Cong., 2nd sess. (Washington: Gales and
Seaton, l836 [sic] ), pp. 229-230.
10U.S. Congress, Senate Committee on the Judiciary,
Report to Accompany S.J. Res. 14, 72nd
Congress, 1st Sess. S. Rept. 26, 72nd Cong., 1st sess. (Washington: GPO, 1932), p. 4.
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Speaker is 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.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
Conclusion
American presidential elections have generally been dominated by two major parties
since the early 19th century, with 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, however; 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, 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.
11For additional information on presidential succession, see: U.S. Library of Congress,
Congressional Research Service,
Presidential and Vice Presidential Succession, by Thomas H.
Neale, CRS Report 98-731 GOV (Washington, Aug. 21, 1998).
12U.S. Library of Congress, Congressional Research Service,
Would the District of Columbia Be
Allowed to Vote in the Selection of the President by the House of Representatives, by Thomas B.
Ripy, Memorandum (Washington: July 7, 1980), p. 4.