Published September 9, 2020
In the event that neither President Donald Trump nor Joe Biden wins an absolute majority of votes in the Electoral College this November, the race will be handled with a constitutional procedure called a contingent election, which will send the contest to the House of Representatives for a final decision.
The process for a contingent election was initially established in Article II of the Constitution and later modified by the Twelfth Amendment. As it stands, the Constitution requires the House of Representatives to go into session to settle the election if neither candidate has attained a majority. Under this procedure, the House then must choose among the three presidential candidates who received the most electoral votes.
What’s most important to note is that in a contingent election, the House doesn’t cast its votes in the same way that it would decide on legislation. Instead, each state delegation must cast its vote en bloc, with each state receiving just a single vote, allotted to the candidate who receives majority support in the delegation. In order to be elected, then, a candidate must receive an absolute majority of state-delegation votes, which, given the 50 U.S. states, means he must receive the votes of 26 state delegations. (Despite having a delegate and three votes in the Electoral College, the District of Columbia does not get a vote.)
This is where things get really interesting: Although the Democratic Party currently holds a majority in the House, with 232 representatives to the Republican Party’s 198, the Republicans hold a majority of state delegations. In the current makeup of the House, there is a Republican majority in the delegations from 27 states. Of course, the composition of those delegations is subject to change in the coming election, and the newly elected House would be the one to settle the presidential election in the event of a tie.
A contingent election for vice president, meanwhile, in which no vice-presidential candidate achieves a majority in the Electoral College, would be settled by the Senate.
In 1800, the U.S. faced one of its few contingent elections, when Thomas Jefferson and Aaron Burr each won 73 electoral votes, John Adams won 65 electoral votes, and Charles Pinckney won 64 electoral votes. This was when the Constitution required each Electoral College member to vote for two candidates for president and none for vice president; the second-place finisher became the vice president. Burr was understood to be Jefferson’s vice-presidential choice, and several people suggested that some Jefferson elector should cast his second vote for someone else, so that Burr would finish second, but nobody did.
When the state delegations of the House attempted to choose between Jefferson and Burr, it took 36 ballots for them to elect Jefferson. The first 35 ballots failed to achieve a majority, in part because House rules label as “divided” any delegation that doesn’t give a majority to either candidate, resulting in its vote being withheld from both candidates. Each time the votes were counted, Jefferson got eight states’ votes, Burr got six, and two states were divided. Finally, on the 36th ballots, a handful of representatives from the opposition Federalist Party relented and changed their votes, and Jefferson was elected.
In past contingent presidential elections, the House has held its votes in a closed session and the votes of each representative were never made public. However, a closed session is not required by the Constitution, and the House could decide to change that rule and publicize the final tally of votes.
Contingent elections are rare, with only three occurring in the U.S. since the founding: in the House in 1800 and 1824, and one in the Senate to choose the vice president in 1836. Even so, it’s not entirely unimaginable, especially given the state of play in several battleground states, that this year’s presidential contest could end up in the House come November.
In addition to that possibility, there’s a chance that the House will have to vote to resolve disputes over the certification of electoral votes. Because there is certain to be an increase in mail-in ballots this year, along with a higher likelihood of court challenges, close final-vote tallies in some states could result in protracted delays or disagreements over validity of the results.
The newly elected House and Senate are always required to certify the Electoral College in the January after a presidential election, giving congressmen the chance to challenge the results. If any congressman does so, it would trigger a vote in each chamber on whether to certify the electoral votes in the disputed state or states. Unlike in a contingent election, those votes would be conducted on an individual basis rather than by state delegation, a prospect that Americans of all political parties should hope to avoid.
Alexandra DeSanctis is a staff writer for National Review and a visiting fellow at the Ethics and Public Policy Center.