American democracy has been through the wringer in recent years, and this November could pose yet another test. With the major party candidates running neck-and-neck, and a well-funded independent challenger, what happens if no candidate receives a 270-vote majority of the Electoral College? Our Constitution provides a roadmap, but if our congressional leaders are to follow it, they need to get moving now.
The New England Legal Foundation took a deep dive into the guidance provided by our existing electoral law. What we found were unanswered constitutional questions and blind spots in congressional requirements, processes and precedents surrounding the scenario of a presidential election falling short in the Electoral College and being thrown to the House of Representatives.
Amendment 12 of the United States Constitution creates a process called “contingent election” when no candidate wins a majority of the Electoral College. Why are we urging the House to begin consideration of procedures so many months before the election? Because if no candidate reaches a majority vote in the Electoral College, the House will have just three days to create rules between taking office and beginning a contingent election to choose the president.
In a contingent election, the president is chosen by the members of the incoming Congress elected to the House in 2024 “immediately” after the electoral votes are canvassed on Jan. 6, 2025 under current law. The vice president is chosen by the members of the Senate who are elected in 2024 or whose terms expire later. It will be up to the House and Senate majorities to decide the procedures for voting, provided they play by the broad requirements of the 12th Amendment.
In the House, members of Congress must choose the next president from among the top three candidates for president who have won at least one vote in the Electoral College. Senators must choose the vice president from among the top two candidates for vice president who have won at least one vote in the Electoral College.
This process will be undeniably contentious. The only past example of the House choosing the president under the 12th Amendment occurred 200 years ago. John Quincy Adams was elected on the first ballot to be president by the House two months after no candidate won a majority of the electoral votes in the 1824 election. Adams had finished second to Andrew Jackson in a four-person campaign for the presidency.
For the office of president, the Constitution provides that each state casts one collective vote for its choice of president. For example, South Dakota, with one member of Congress, has the same voting power for president as California, with its 52 members of Congress. In the House, the Constitution requires that a quorum of two-thirds of the states be present before any contingent election can begin. But both the House and the Senate have discretion to set their own rules for contingent election proceedings, so long as they comply with the overall provisions of the Constitution.
Some of the loopholes we found might actually provide a path to a civil and respectful process. For example, there is no requirement that the president and vice president be members of the same political party, meaning a bipartisan unity ticket of a president and vice president from different parties is possible. (There are slightly different procedures in each chamber for choosing the president and vice president.)
There are more major questions that need answers before Congress makes this historic choice: What committee will craft the rules governing the process? Who will preside over the contingent election, especially if a House Speaker has not yet been selected? Will it be a secret ballot or an oral vote? The diligence of these decisions will define how the public judges the transparency and legitimacy of the outcomes of the entire process.
In navigating this potentially fragile point in American history, the House must take action now by developing model rules that will prevent erosion of the legitimacy of the president. Considering these rules now — when there is still time for research and investigation into the issues — is essential to avoid panic should the House have just three days to create these rules between taking office and beginning a contingent election.
So how did it work out for the younger Adams? President John Quincy Adams was impeded by an uncooperative Congress, but he’s viewed favorably by historians as a public servant who opposed slavery, supported the rights of women and Native Americans, advocated for federally funded infrastructure projects and urged engagement with the countries of Latin America.
In a contingent election, merit selection might prevail over political party preferences. And based on history’s view of John Quincy Adams, maybe that would not be a bad result.
Dan Winslow is a former Massachusetts judge who now serves as president of the non-profit, non-partisan New England Legal Foundation (NELF). Vincent Gritzuk was the Faberman Fellow at NELF and now is a third-year student at Boston College Law School.
