Contingent Presidential Election – 19th Century Anachronism or Detour From Democracy in 2025?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Stephen R. Rolandi
July 22, 2024

“The Four Most Miserable Years of My Life were My Four Years in the Presidency.” -John Quincy Adams (1767-1848), Sixth President of the United States

The above quotation from our Sixth President refers to a unique situation that occurred in the Presidential election of 1824, almost two hundred years ago.

In the 1824 election, there were four candidates for the Presidency—John Quincy Adams of Massachusetts; Andrew Jackson of Tennessee; William H. Crawford of Georgia; and Henry Clay of Kentucky. Jackson won 40 percent of the popular vote; Adams received 33 percent; Clay 13 percent and Crawford 11 percent (unpledged electors received 3 percent). None of the candidates received a majority of the Electoral College vote, although Jackson received the highest number of Electoral College votes.

A contingent election was required, in keeping with the Twelfth Amendment to the Constitution, which was added as a result of the 1800 election when Thomas Jefferson was elected by the House of Representatives.

Adams ultimately prevailed over Jackson in the House of Representatives in 1825. Andrew Jackson’s followers believed that Henry Clay (who had finished fourth in the Electoral College) had given his support to Adams with the understanding that Clay become Secretary of State. Jackson’s supporters referred to this agreement as a “corrupt bargain.” In 1828, Jackson defeated Adams for re-election.

Many analysts believe that there is a good likelihood of no candidate in this year’s Presidential election winning a majority of the Electoral College, and that a contingent election would be required to be held in January 2025.

The Twelfth Amendment to the Constitution, ratified on June 15, 1804, provides a mechanism to deal with this potential circumstance; the relevant portion of the Amendment reads as follows:

“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 Elector 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….The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President….”

Were such a situation to occur after our 2024 election, a contingent election would be held, where the House of Representatives would convene (presumably, after the Electoral College votes were certified by Congress meeting in joint session next January 6, 2025—this would be the new Congress elected in November of 2024) to select a President from the three highest candidates (Republican, Democratic and an Independent/Third Party nominee); the new Vice President would be selected by the Senate voting among the top two nominees (presumably a Republican and Democratic nominee).

What is significant here is that the House would elect the new President by each state casting one vote (not each Representative); the Senate would elect the new President with each Senator casting one vote. Both chambers would keep voting until a candidate had secured a majority—in the House, 26 state delegations (excluding the District of Columbia) and the Senate, 51 members.

There are many unknowns here, given that the last contingent Presidential election was held in 1825 and Vice Presidential contingent election was conducted in 1837.

Among them is that there is no Federal law governing how a contingent election would be administered. I believe that Congress would set the rules and procedures for the conduct of a contingency election, which could be dominated by intense partisan politics. For example, a Senate filibuster could lead to a Vice Presidential vacancy.

Uncertainty over Presidential succession in the absence of a contingent election winner could provoke a high-stakes dispute. The Presidential Succession Act stipulates that the Speaker of the House and President pro-tempore of the Senate serve as Acting President and Vice President, respectively until their successors are duly elected. However, both of these officials would first have to resign their Congressional positions before assuming the acting President/Vice President positions. And if neither wishes to do so, then the line of succession would fall to the highest ranking cabinet officer (s) of the prior administration.

While a contingent election would succeed in electing a new President and Vice President, serious concerns would be raised, given the current political climate in the nation; some scholars believe there would likely be a constitutional crisis:

• With the House of Representatives voting by state delegation against the presumed will of the voters as expressed in the popular vote, elevating such a candidate would likely generate hard feelings and sharp criticism;
• The House selects the plurality popular vote winner in the face of a possible angry and aggrieved faction believing that the contingent election winner owed his/her election to a “corrupt” establishment (to borrow Andrew Jackson’s words from 1825) in an opaque process; and
• There is the possibility that the new President and Vice President are of different political parties, with the strong possibility of gridlock.

Several proposals have been advanced to modify or abolish the contingent election feature, which would likely require a constitutional amendment.

Proposals for Reform of the Contingent Election:

• Abolish the Electoral College outright and replace it with a direct popular vote; this proposal would eliminate the need for a contingent election; or,
• Retain the contingent election feature, but permit individual House members to directly vote for the Presidential nominee finalist (i.e. eliminate the state delegation rule);
• Modify the Electoral College to permit an electoral vote for each Congressional District, with the statewide winner receiving the state’s two electoral votes. 

It is my sincere hope that there is a clearcut winner of the 2024 Presidential Election, thus obviating the need for a contingent election. In my view, the contingent election is a relic of the 19^th century and poses a potential threat to democracy. It needs to be abolished or at least modified. Time will tell.

Postscript:

For further reading, I suggest consulting the following publications and reports:

• Thomas H. Neale (2020) “Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis” Congressional Research Service (CRS) (https://crsreports.congress.gov);
• Michael J. Glennon (1992), ”When No Majority Rules: The Electoral College and Presidential Succession,” Washington, DC: Congressional Quarterly (cq.com);
• Kyle Kondik, The Center for Politics, University of Virgina (2024), “Trump’s Contingent-cy Plan,” (https://center for politics.org);
• Walter Berns (ed.) (1983) “After the People Vote: Steps in Choosing the President,” Washington, DC: American Enterprise Institute for Public Policy Research (www.aei.org)

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Author: Stephen R. Rolandi retired in 2015 after serving with the State and City of New York. He holds BA and MPA degrees from New York University, and studied law at Brooklyn Law School. He teaches public finance and management as an Adjunct Professor of Public Administration at John Jay College of Criminal Justice (CUNY) and Pace University. Professor Rolandi is a Trustee of NECoPA; President-emeritus/Senior Advisor for ASPA’s New York Metropolitan Chapter and past Senior National Council Representative. He has  served  on many  association boards, and is a frequent guest commentator on  public affairs and political issues affecting the nation and New York State. You can reach him at: [email protected] or [email protected] or  914.441.3399 or 212.237.8000.

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