Quick Summary
If no presidential candidate receives 270 electoral votes, the election for President is decided by the House of Representatives, with each state delegation getting one vote. The House has decided only two presidential elections in U.S. history.
How Many Votes are Needed to Win the Presidency?
To win the presidency, a candidate must receive a majority of the 538 electoral votes allocated across the 50 states and Washington, D.C. This magic number is 270 electoral votes.
When voters go to the polls on Election Day, they are technically voting for a slate of electors pledged to that presidential candidate. The number of electors in each state is equal to its number of U.S. Senators and Representatives. Whichever presidential candidate wins the popular vote in a state (with two exceptions), receives all of that state’s electoral votes.
If no candidate reaches 270 electoral votes due to a tie, split of electoral votes, or third party candidate keeping them from reaching a majority, the 12th Amendment to the U.S. Constitution mandates that the House of Representatives selects the President and the Senate selects the Vice President.
Why Was the 12th Amendment Passed?
The Constitution’s original rules did not anticipate the rise of political parties. This became apparent in 1800 when Thomas Jefferson and Aaron Burr received an equal number of electoral votes with 73 each. Jefferson was the presidential candidate and Burr was the vice-presidential candidate for the Democratic-Republican party, but the original Constitution did not distinguish between them.
The election was thrown to the House, which took 36 ballots over seven days to elect Jefferson as the 3rd President. To avoid a repeat of this, Congress proposed and the states ratified the 12th Amendment in 1804. It requires electors to differentiate their two votes for president and vice president.
The 12th Amendment States:
“The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.”
How the House Decides the Presidency
If no candidate receives an electoral college majority, the newly elected House selects the President, with each state delegation having one vote. TheHouse has decided only two presidential elections using this procedure:
- 1800 – Thomas Jefferson vs. Aaron Burr
- 1824 – John Quincy Adams vs. Andrew Jackson
Some key factors about how the House selects the President:
- The House decides among the 3 candidates who received the most electoral votes, with each state delegation getting one vote.
- A candidate needs 26 state delegations to win – a simple majority of the 50 states.
- States can split their vote if delegation members don’t agree.
- Democrat or Republican majorities in state delegations don’t matter. What matters is the majority vote within each delegation.
If the House is unable to elect a President by Inauguration Day, January 20, the Vice President-elect serves as acting President until the impasse is resolved.
How the Senate Decides the Vice President
If no vice presidential candidate receives an electoral college majority, the newly elected Senate, with each Senator having one vote, selects the Vice President from the top two candidates with the most electoral votes. The Senate has decided only one vice presidential election using this procedure:
- 1836 – Richard Johnson vs. Francis Granger
Some key factors about how the Senate selects the Vice President:
- The Senate decides between the 2 candidates who received the most electoral votes.
- A candidate needs 51 votes – a simple majority of 100 Senators – to win.
If the Senate is unable to elect a Vice President by Inauguration Day, the President-elect appoints the Vice President from either chamber of Congress.
What Happens if There’s No Result by January 20?
If neither chamber of Congress has resolved the impasse by Inauguration Day, January 20, the Presidential Succession Act of 1947 determines who serves as President and Vice President until the stalemate is broken.
The newly elected Speaker of the House becomes acting President and the President Pro Tempore of the Senate becomes acting Vice President during the impasse. Currently these officials are:
- Speaker of the House – Nancy Pelosi (D-CA)
- President Pro Tempore of the Senate – Patrick Leahy (D-VT)
Historical Contingent Elections
The House has decided only two presidential elections using contingent election provisions:
1800: Jefferson vs. Burr
In 1800, Thomas Jefferson and Aaron Burr tied in the electoral college with 73 votes each. The election was thrown to the House which took 36 ballots over 7 days to finally elect Jefferson as the 3rd President. Burr became Vice President.
1824: J.Q. Adams vs. Jackson
In 1824, Andrew Jackson won a plurality of electoral and popular votes, but not a majority, in a four candidate race. Speaker of the House Henry Clay threw his support to John Quincy Adams on the House floor. On February 9, 1825, the House elected Adams as the 6th President on the 1st ballot with 13 state delegations. Jackson became a lifelong enemy of Adams and Clay.
How Current Party Control Could Impact a Contingent Election
If the 2024 presidential election is decided by the House, the current party control makeup indicates:
- 27 state delegations have a Republican majority.
- 20 state delegations have a Democratic majority.
- 3 state delegations are tied.
This Republican majority in state delegations suggests a GOP presidential candidate would have an advantage in a contingent election decided by the House. However, the votes are conducted by secret ballot, so the outcome depends on how each Representative in each delegation votes, regardless of party.
The current party control makeup of the Senate indicates:
- Democrats have 48 seats
- Republicans have 51 seats
- There is 1 Independent who caucuses with Democrats
This slim GOP majority suggests a Republican vice presidential candidate would have a slight advantage in the Senate contingent election process. Unlike the House, Senator’s votes are public in the VP selection process.
Faithless Electors Could Trigger a Contingent Election
While rare, there is a possibility that faithless electors could tip a presidential election to the House. A faithless elector is someone who does not vote for the candidate they were pledged to as determined by the popular vote outcome in their state. There have been a small number of faithless electors in recent elections:
| Election Year | Faithless Electors |
|---|---|
| 2016 | 7 |
| 2012 | 1 |
| 2004 | 1 |
| 2000 | 1 |
| 1996 | 1 |
| 1988 | 1 |
| 1976 | 1 |
| 1972 | 1 |
| 1968 | 1 |
| 1960 | 1 |
| 1956 | 1 |
| 1948 | 1 |
While most faithless electors have done it as a protest without impacting the outcome, enough faithless electors going against the winner of their state popular vote could deny a candidate an electoral college majority.
For example, assume a Democratic candidate won 300 electoral votes in the general election. If as few as 6 of those electors cast a faithless vote for a 3rd candidate instead, that would drop the Democrat to 294 electoral votes and trigger a contingent election in the House.
Contingent Election Scenario in 2024
In a hypothetical scenario for the 2024 election, here is one way it could play out in a contingent election:
The Republican ticket wins 260 electoral votes, the Democratic ticket wins 250 electoral votes, and a viable 3rd party candidate wins 28 electoral votes. This prevents either major party nominee from getting the needed 270 electoral vote majority.
In the House contingent election, each state delegation gets one vote, with 26 votes required to win. Republicans hold a 27 delegation majority based on current party control. The House elects the Republican nominee as President.
In the Senate contingent election, each Senator gets one vote, with 51 votes required to win. Republicans hold a 51-48 advantage (with 1 Independent). The Senate elects the Republican nominee as Vice President.
Court Challenges Could Occur
One possible issue that could arise if the election is decided in the House is legal challenges from the losing party. For example, a Democratic candidate who won the popular vote nationally could challenge the House selecting the Republican candidate as unconstitutional.
However, the Supreme Court has consistently deferred to Congress for settling disputed elections for President and Vice President. With no judicial review and votes conducted in secret, the House and Senate contingent election results would likely stand absent public pressure on Congress.
The Impact on the Presidency Itself
Having the House select the President could significantly diminish the winning candidate’s power and legitimacy as a leader. The razor thin electoral circumstances would weaken the President’s political capital right out of the gate.
In addition, the incumbent President remains in power until noon on Inauguration Day. So if the stalemate dragged on for weeks or months, it could significantly hamper the incoming administration’s transition planning efforts.
Finally, starting a term with drawn out House votes and floor fights would likely foreshadow even greater partisan gridlock during the next administration.
Conclusion
The House has decided only two presidential elections under the 12th Amendment procedures, with none since 1825. While unlikely, a modern day contingent election would occur if no candidate wins an electoral college majority.
Factors like current House and Senate party control, faithless electors, third party candidates, and court challenges could all come into play if the 2024 election is thrown to Congress.
Given how polarized our politics have become, a contingent election scenario would almost certainly be contentious. The legitimacy of the next President could be called into question right from the outset.
While the Constitutional process provides a resolution to an electoral college deadlock, a contingent election decided in the House may well lead to further divides in our already fractured republic.
