Contingent presidential election by House
The
Twelfth Amendment requires the
House of Representatives to go into session immediately to vote for a president if no candidate for president receives a majority of the electoral votes (since 1964, 270 of the 538 electoral votes).
In this event, the House of Representatives is limited to choosing from among the three candidates who received the most electoral votes for president. Each state delegation votes
en bloc — each delegation having a single vote; the District of Columbia does not get to vote. A candidate must receive an absolute majority of state delegation votes (i.e., at present, a minimum of 26 votes) in order for that candidate to become the
president-elect. Additionally, delegations from at least two thirds of all the states must be present for voting to take place. The House continues balloting until it elects a president.
The House of Representatives has chosen the president only twice: in
1801 under Article II, Section 1, Clause 3; and in
1825 under the Twelfth Amendment.
Contingent vice presidential election by Senate
If no candidate for vice president receives an absolute majority of electoral votes, then the
Senate must go into session to elect a vice president. The Senate is limited to choosing from the two candidates who received the most electoral votes for vice president. Normally this would mean two candidates, one less than the number of candidates available in the House vote. However, the text is written in such a way that
all candidates with the most and second most electoral votes are eligible for the Senate election – this number could theoretically be larger than two. The Senate votes in the normal manner in this case (i.e., ballots are individually cast by each senator, not by state delegations). However, two-thirds of the senators must be present for voting to take place.
Additionally, the Twelfth Amendment states a "majority of the whole number" of senators (currently 51 of 100) is necessary for election.
[101] Further, the language requiring an absolute majority of Senate votes precludes the sitting vice president from breaking any tie that might occur,
[102] although some academics and journalists have speculated to the contrary.
[103]
The only time the Senate chose the vice president was in
1837. In that instance, the Senate adopted an alphabetical
roll call and voting aloud. The rules further stated, "
f a majority of the number of senators shall vote for either the said Richard M. Johnson or Francis Granger, he shall be declared by the presiding officer of the Senate constitutionally elected Vice President of the United States"; the Senate chose Johnson.[104]
Deadlocked election
Section 3 of the Twentieth Amendment specifies if the House of Representatives has not chosen a president-elect in time for the inauguration (noon EST on January 20), then the vice president-elect becomes acting president until the House selects a president. Section 3 also specifies Congress may statutorily provide for who will be acting president if there is neither a president-elect nor a vice president-elect in time for the inauguration. Under the Presidential Succession Act of 1947, the Speaker of the House would become acting president until either the House selects a president or the Senate selects a vice president. Neither of these situations has ever occurred.
