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

Publication Date: January 2001

Publisher: Library of Congress. Congressional Research Service

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Research Area: Politics

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Abstract:

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.