What Is the Contingent Election and Voting Process?
Created by FindLaw's team of legal writers and editors | Last reviewed November 03, 2020
In 1800 and 1824, the President of the United States was elected not by a majority of the American voters, or by the Electoral College, but by the U.S. House of Representatives. In 1836, the Vice President was elected by the U.S. Senate.
What happens when there is an electoral college tie?
What Is a Contingent Election, and What Is the Voting Process?
The United States uses an electoral college system (more about this below) to elect the vice president and president. Sometimes the Electoral College fails to give a presidential or vice-presidential candidate a majority of the vote.
It's rare. It's only happened three times in the nation's history. But when it does, the 12th Amendment of the U.S. Constitution serves as an election tie-breaking provision. It provides instruction to address an electoral college tie through a contingent presidential election.
The Constitution directs that when candidates for these top federal offices fail to achieve the voting threshold of 270 electoral votes, the power to elect the president is transferred from the Electoral College to:
- The U.S. House of Representatives for the president
- The U.S. Senate for the vice president
In a contingent presidential election, it is the representatives or senators from each state who vote for – and elect – the president and vice president.
A Contingent Election Example: The 1824 Election
In 1824 there was only one political party, and it had splintered into four factions. (At that time, electoral voters did not represent the will of the voters in their region as expressed through the popular vote as some states did not conduct a popular vote.)
To win the election, a candidate would have to receive a majority of the electoral vote (which totaled 261).
With four candidates on the ballot, no candidate achieved a majority (< 50%). The leading candidate, Andrew Jackson, received 37.9% of the votes (99) and a majority of the popular vote. The second-highest vote-getter, John Quincy Adams, received 32% and the second-highest poplar vote.
Adams was elected by the House of Representatives.
The Electoral College in a Representative Democracy
The United States is a representative democracy. Voters rarely vote on the issues that affect their lives, except at the most local level.
They vote, instead, for candidates who they hope will represent their interests in governing bodies. Those are the people whose votes determine the laws we will live by.
Voters directly elect the senators and representatives from their state who will represent them at the federal level. But, that is not actually the case with the federal office of president and vice president. Voters do cast a ballot for these candidates, and the popular vote is counted and announced. Still, the popular vote does not elect the president or vice president.
Voters are actually voting (indirectly) for which political party will send its electors to participate in the Electoral College process.
Article Two of the Constitution and the Electoral College
Article Two of the U.S. Constitution establishes the executive branch of the government. It defines the procedures that will be used for electing and removing a president. Article Two established the Electoral College, a process by which a small group of voters — called electors — "represent" the voters of their state. It is the vote of these electors that determines who becomes president.
There are 538 electors. The number of electors for each state is the same as the number of its House and Senate representation combined. (Amendment 23 gave the District of Columbia 3 electors.) Every state has two senators. The number of representatives is based on population, so heavily populated states have more electors than less populated states.
Winning an Election With Electoral Votes
To win the election, a candidate must achieve 270 electoral votes at the meeting of the electors, which takes place on the first Monday after the second Wednesday of December (following the general election).
Before that meeting, each state's governor will have prepared a Certificate of Ascertainment that lists all the candidates who ran for president and the winning presidential candidate from that state. The Certificate of Ascertainment also lists the electors who will represent the state at the meeting of electors.
All of a state's electoral votes are typically awarded to the candidate who received the most presidential votes in that state — a winner-take-all approach. But Maine and Nebraska allocate their electors for proportional representation, which approximates the percent of votes a candidate received in their state.
It is also possible for electoral voters to break from their party and their state. This is what occurred in 1836 when the vice-presidential candidate was not elected, and a contingent election was needed.
Electoral College Challenges
The Electoral College process has been controversial, and until recently, a majority of voters surveyed said they preferred direct voting.
Electoral College reform has been proposed on numerous occasions but has failed to gain traction. People can gain a better understanding of the history of the Electoral College, how its challenges could result in a contingent election, and why people may seek reform. You can talk to an election law attorney knowledgeable about election law.
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