Jan 6th Joint Session and a Contingent Election - Constitutional Requirements & Procedures
Justin Haggerty | The Daily Knight
Contingent Election of the President: Constitutional Requirements and 1825 House Procedures
Rules governing contingent election of the President in the House of Representatives may be divided into two categories: constitutional requirements and procedures adopted by the House to “flesh out” the rules for its 1825 contingent election. In addition, the House in 1825 made certain other procedural decisions that were not dictated by the 12th Amendment.
The 12th Amendment sets certain requirements for contingent election in the House of Representatives, as follows.
The Three-Candidate Limit
The Amendment limits the number of presidential candidates eligible for consideration by stating that if no candidate receives a majority of electoral votes, then the House shall choose the President “from among the persons having the highest numbers [of electoral votes] not exceeding three.... ” In the contemporary context, it is unlikely, but not impossible that more than three presidential candidates would gain electoral votes. The most recent presidential election in which a “third party” presidential candidate gained any electoral votes, aside from a scattering of faithless electors, was 1968, when American Independent Party candidate George C. Wallace received 46.
Voting “Immediately” and “by Ballot”
The 12th Amendment next provides that the House “shall choose immediately, by ballot ... the President.” Most observers agree that the first part of this clause—“immediately”—requires that the House must literally proceed to the contingent election without any delay. It should also be noted that the rules adopted for contingent election in 1825 required the House to “ballot for a President, without interruption by other business, until a President be chosen.”
The meaning of voting “by ballot” has been debated over the years. At the time of the 1801 and 1825 contingent elections, this was interpreted as requiring a secret, paper ballot, and a two-stage process. In 1825, each state delegation was provided with a dedicated ballot box for its internal voting, while two additional general election ballot boxes were provided for the plenary voting by the states. In the two-round system, the state delegates would first cast their internal ballots; they would then mark the state results on two additional secret ballots, and deposit one in each of the two general ballot boxes.
The 12th Amendment states that “a quorum for this purpose [contingent election of the President] shall consist of a member or members from two thirds of the states.... ” In the contemporary context, this would require one or more Representatives from 34 of the 50 states.
House Procedures in 1825
In common with other parts of the Constitution, the 12th Amendment established a framework for a particular procedure but left many details to the discretion of Congress. In the case of contingent election of the President, the House fleshed out the constitutional requirements with a package of supplementary procedures. These rules, which were drafted by a select House committee composed of one Member from each state, may be summarized as follows:
The Speaker of the House of Representatives was designated as presiding officer for the contingent election. This had also been the case in 1801.
As noted previously, the “voting by ballot” stipulation requirement was interpreted in 1825 as requiring the use of secret paper ballots.
For the first round vote, within state delegations, a majority of state delegation Members present and voting was required to cast the state vote. If a majority was obtained, the name of the preferred candidate was written on the second round ballot. If there was no majority, the second round state ballot was marked “divided.”
The House met in closed session: only Representatives, Senators, House officers, and stenographers were admitted. It is worth noting, however, that despite the precautions of a closed session and secret ballots, the votes not only of state delegations, but of individual Members, were widely known soon after the 1825 contingent election, and subsequently reported in the press.
Motions to adjourn were entertained only when offered and seconded by state delegations, not individual Representatives.
State delegations were physically placed in the House chamber from left to right, beginning at the Speaker’s left, in the order in which the roll was called. At that time, the roll began with Maine, proceeded north to south through the original states to Georgia, and concluded with subsequently admitted states, in order of their entry into the Union.
Contingent Election of the Vice President: Constitutional Requirements and Senate Procedures in 1837
The 12th Amendment’s requirements for contingent election of the Vice President are less complex than those for the House in the case of the President. It prescribes only the quorum necessary to conduct the election, two-thirds of the whole number of Senators (67 of 100 at present, assuming there are no vacancies), and the margin necessary to elect the Vice President, a majority of the whole number of Senators (51 at present, again assuming there are no vacancies).
Some constitutional requirements for the House do not appear in contingent election procedures for the Senate. For instance, there is no requirement that the Senate vote “by ballot.” In 1837, the Senate decided that the election would be by voice vote—viva voce. The roll was called in alphabetical order, at which time each Senator named the person for whom he voted. Further, there is no language requiring the Senate to vote “immediately,” to the exclusion of other business. In 1837, this presented no problem, as the likely result was known well in advance, and Richard Mentor Johnson was elected with a comfortable majority. It is unclear whether the Senate conducted its 1837 contingent election behind closed doors, but neither the Senate Journal nor the Register of Debates in Congress entries for the session stated that the gallery was closed, so it may be assumed that spectators from the House and the general public were present. It is also interesting to note that President pro tempore William R. King, rather than outgoing Vice President Martin Van Buren, presided over the 1837 contingent election. Van Buren had “retired” from duties as President of the Senate on January 28, 1837.
Contingent Election Modified: The 20th Amendment and the Presidential Succession Act
The contingent election process was modified twice in the 20th century, first by the 20th Amendment to the Constitution, which took effect in 1933, and later by the Presidential Succession Act of 1947.
The 20th Amendment
The 20th Amendment to the Constitution was proposed to the states by Congress on March 22, 1932; the ratification process was completed in less than a year, on January 23, 1933. Section 1 of the Amendment set new expiration dates for congressional and presidential terms: for Congress, the date was changed from March 4 every odd-numbered year to January 3; for the President, it was changed from March 4 to January 20 of every year following a presidential election. The primary purpose of these changes was to eliminate lame duck post-election sessions of Congress and to shorten the period between election and inauguration of the President from four months to about 10 weeks.
The 20th Amendment was also designed to remove the responsibility for contingent election from a lame duck session of Congress. The framers of the amendment intended to ensure that the President would be chosen by the newly elected House of Representatives, and the Vice President by the newly elected Senate. Section 3 of the 20th Amendment also treats contingent election: it reinforces the 12th Amendment provision that the Vice President (assuming one has been chosen) acts as President in the event the House is unable to elect a President in the contingent election process by the time the presidential term expires. Section 3 also empowered Congress to provide by law for situations in which neither a President nor a Vice President qualified.
The Presidential Succession Act of 1947
Congress implemented the authority provided in Section 3 of the 20th Amendment when it passed the Presidential Succession Act of 1947, a major overhaul of presidential succession procedures. The act, which remains in effect, provides that the Speaker of the House would act as President during situations in which neither a President nor Vice President has qualified, and would continue to do so until the situation is resolved or the term of office expires. If there is no Speaker, or if the Speaker does not qualify, then the President pro tempore of the Senate acts as President. Before being sworn as “acting” President, either officer would be required to resign their leadership offices and membership in their respective chambers. If both the Speaker and President pro tempore were to decline the office, or fail to qualify for any reason, then the acting presidency would devolve on the head of the most senior executive department, provided that officer is constitutionally qualified, has been regularly nominated by the President, and has been confirmed by the Senate. According to the act, by taking the oath of office to act as President, a Cabinet officer would automatically vacate the Cabinet position, thus avoiding the constitutional prohibition against dual office holding.
Both the Succession Act and the 20th Amendment specifically limit the service of a person acting as President under such circumstances: he or she holds office only until either a President or Vice President has qualified.
Contingent Election of the President: Contemporary Analysis
Almost two centuries have passed since the House of Representatives last elected a President of the United States, and nearly as long since contingent election of a Vice President. What are some of the factors the House or Senate might consider should either chamber—or both—be called on to perform this function in the contemporary context?
The 1825 House Procedures: To What Extent Would They Be Applicable in the Contemporary Context?
Many of the decisions reached in 1825 applied only to the rules under which the House of Representatives conducted contingent election in that specific instance, and in that particular year. Although they may arguably provide a point of reference for the House in any future application of the contingent election process, they would not be prescriptive, and might well be subject to different interpretations.
Committee of Jurisdiction in Contingent Election of the President
Several committees of the House of Representatives could claim primary jurisdiction of the rules and regulations governing a contingent election of the President. The existing precedent is not directly applicable: in both 1801 and 1825, the House voted to establish a select committee to prepare rules governing contingent election. During this period, the House had a Committee on Elections, but its authority was restricted to the adjudication of congressional elections. A Committee on election of the President, Vice President and Representatives in Congress was later established, but its authority was ultimately transferred to the Committee on House Administration by the Legislative Reorganization Act of 1946. The current House Administration Committee might assert its authority over the contingent election process on these grounds. The Committee on Rules could also assert at least partial authority on the basis of its jurisdiction over rules and procedures for the House. Finally, the House Committee on the Judiciary might arguably claim jurisdiction on the basis of its primacy in the area of the Constitution and presidential succession.
House Proceedings: Open or Closed?
In both 1801 and 1825, the House conducted contingent election of the President behind closed doors. In the modern context, however, there would be strong, perhaps irresistible, pressure for a contingent election session to be open to the public and covered by radio, television, and webcast. Proponents of an open session would likely note that there is no secrecy requirement for contingent election sessions in the 12th Amendment, while opponents might assert that the constitutional gravity of the contingent election process requires both confidentiality and the free exchange of debate that a closed session would facilitate.
Individual Members’ Votes and State Delegation Votes: Confidential or Public?
Similarly, there would likely be strong demands that the votes of individual Representatives in the first round of the election, that which occurs within state delegations, be made public. This position could be justified on the grounds that the 12th Amendment’s instruction that voting be “by ballot,” and therefore secret, applies only to the votes of the states in the second round, and not to Members as they vote within their state delegations. Taking this assertion to the next level, it could be further argued that the entire process should be open to the public. Advocates might suggest that the amendment’s language is not prescriptive, that the phrase “by ballot” could just as easily be interpreted as meaning by paper ballot, but not necessarily a secret ballot. They could argue the position that a decision of such great constitutional consequence should be made in the bright light of public awareness, and that both individual Representatives and state House delegations should be fully accountable for their votes.
In opposition, defenders of a secret ballot might assert that this was the original intent of the 12th Amendment’s authors, and that an open ballot might subject Representatives to attempts to influence their votes by pressure, subvention, or perhaps even threats from outside sources. They might also note that the same sanctity of the secret ballot enjoyed by ordinary citizens in the voting booth should extend to Representatives—or states—in a contingent election.
Plurality or Majority Voting Within State Delegations?
Another precedent from 1825 that might be open to question was the House’s decision to require a majority vote within a state delegation during the first round among the state’s Representatives in order to cast that state’s vote in the second round. States that failed to reach a majority within the delegation were required to mark their ballots as “divided.” This requirement does not appear in the Constitution, and the question could be raised as to whether the House can legitimately set a plurality requirement for the first round of voting.
In favor of the original provision, it may be argued that the majority requirement echoes the electoral college, which requires that a candidate receive a majority of votes nationwide in order to be elected.
Conversely, a first-round plurality requirement might be justified on the grounds that 48 states and the District of Columbia require only a plurality of popular votes to win all the state’s electoral votes.
During the 1980 presidential election, a memorandum on the subject of contingent election by Representative Martin Frost suggested that the Constitution did not specify either a majority or plurality requirement within state delegations, and summarized policy arguments on both sides of the question.
The Role of the Representative in Contingent Election
Representatives participating in a contemporary contingent election of the President would be called on to perform a function of great constitutional significance. They might well be subject to competing demands as to how they should vote. While the 12th Amendment is silent on the constitutional duties of individual Members in this situation, several alternative positions were identified and debated in the House during its consideration of contingent election arrangements in 1825. The concerns voiced by the Representatives of that era would be arguably similar to those faced by their modern-day counterparts.
Some Representatives asserted in 1825 that notwithstanding the silence of the 12th Amendment, it was the duty of the House to elect the candidate who had won the most popular and/or electoral votes, and who was the choice of at least a plurality of the voters and electors.
Others suggested that Members ought to give prominence to the popular election returns, but should also consider themselves at liberty to weigh the comparative merits of the candidates before them.
Still another alternative was presented suggesting that contingent election was a constitutionally distinct process, triggered by the failure of both the voters and the electoral college to arrive at a majority decision. The contingent election, its supporters reasoned, was an entirely new event in which individual Representatives were free to consider the merits of contending candidates without reference to the earlier contest.
These alternatives debated in the House in 1825 might arguably carry less weight in the 21st century, in an era when the ideal of majoritarian democracy is almost universally honored, if not always perfectly respected. Nevertheless, House Members could consider a range of options, which might arguably claim legitimacy; in choosing among them, they could cite Edmund Burke’s famous defense of the elected representative’s right to exercise individual judgment, “Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.” Representatives might weigh the following options, considering whether they should vote for:
The candidate who won a nationwide plurality or majority of the popular vote. As noted previously, this choice would have a strong claim on the grounds of fairness and democratic principles.
The candidate who won a plurality of electoral votes. A Member choosing this person could justify the decision on the grounds that it respects the electoral college provisions of the Constitution and the concept presidential election as a combined national and federal process in which the electors have a constitutionally mandated role.
The winner in the Member’s state or district. Here, a Representative could argue that the freely expressed choice of the voters he or she represents—on either the state or district level—are deserving of respect and deference.
To these competing, but related claims of “equity,” “acceptance of the people’s choice,” and state or local preferences, might be added further alternatives, such as the following. A Member might also considering voting for:
The candidate of the Member’s party. Party loyalty and agreement with the platform and principles of the Representative’s own party could make a legitimate claim for his or her vote.
The Member’s personal preference. A Representative, citing Burke, and trusting his eventual electoral fate to the ultimate judgment of his fellow citizens, might also cite personal preference, trust, and shared principles as justification for a particular vote in contingent election.
These and other factors would arguably call for a serious examination of the alternatives, not only by and among individual Members, but also in open debate on the floor of the House. While the 12th Amendment, as noted previously, requires a vote “by ballot” in contingent election of the President, it does not prohibit Representatives from announcing how—and why—they cast their votes. Such a colloquy might emerge as one of the most dramatic and portentous deliberations in either chamber in the long history of congressional debate. In the modern context, it would certainly be the subject of unprecedented publicity, examination, and commentary in the press and broadcast and internet media.
The Role of the District of Columbia
Although the 23rd Amendment empowers citizens of the District of Columbia to vote in presidential elections, where it casts three electoral votes, it makes no mention of the contingent election process. The District is thus not considered a state for the purposes of contingent election, and its Delegate to Congress would therefore not participate in the contingent election of either the President or Vice President.42 Contingent Election of the Vice President: Contemporary Analysis The 12th Amendment, as noted earlier, imposes fewer procedural demands on the Senate in its language establishing contingent election of the Vice President than it does on the House of Representatives. The comparative simplicity of the process would thus arguably require fewer process-driven decisions by the Senate if it were called on to elect a Vice President today. As noted earlier in this report, in 1837, the roll was called and the Senators declared their preference viva voce—by voice vote. Further, it is likely that the proceedings were open to the public, since neither the Register of Debates in Congress nor The Journal of the Senate provides any indication that the galleries were cleared, or that the Senate otherwise met in closed session.
For the Senate, therefore, historical precedent appears to support, but does not mandate, a voice vote in open session.
In the Senate, proposals relating to procedures for contingent election of the Vice President would likely be referred to the Committee on Rules and Administration. Under the Rules of the Senate, this committee has jurisdiction over both “congressional ... rules and procedures, and Senate rules and regulations, including floor ... rules,” and “Federal elections generally, including the election of the President [and] Vice President.... ” The Senate customarily refers each measure in its entirety to the committee with predominant jurisdiction over the subjects in the legislation. As in the House, the Senate Committee on the Judiciary has jurisdiction over constitutional amendments, and would presumably receive proposals for constitutional change in this area.
Proposed Changes to Contingent Election
During the 108th through 110th Congresses, constitutional amendments were proposed that would have changed House of Representatives voting in a contingent election of the President. In addition, contingent election has traditionally figured indirectly in most proposals to reform the electoral college or establish direct popular election. Direct popular election would eliminate contingent election and effectively repeal the 12th Amendment.
With respect to changing contingent election, the most recent proposals were introduced in the 110th Congress by Representative Brad Sherman (H.J.Res. 73), and Representative Virgil H. Goode Jr. (H.J.Res. 75). Both resolutions proposed a fundamental change in contingent election of the President. Instead of each state casting one vote, each Representative would cast a vote. The person receiving the greatest number of votes would be elected, provided that this number constituted a majority of votes cast.
The only difference between the two proposals centered on quorum requirements for the House in contingent election sessions. H.J.Res. 73 would have changed the 12th Amendment’s quorum, “a member or members from two-thirds of the states” to “a majority of the House.” By comparison, H.J.Res. 75 proposed a higher threshold for contingent election: “two thirds of the members of the House shall constitute a quorum.” The evident purpose of these provisions was to ensure that a majority (H.J.Res. 73) or a super majority (H.J.Res. 75) would be present for a contingent election. The 12th Amendment’s existing quorum requirement of a Member or Members from two-thirds of the states is markedly less rigorous; in fact, it would be theoretically possible to hold a contingent election session under the present arrangements with as few as 34 Members present.46 The argument favoring this change is straightforward: since contingent election of the President is one of the most constitutionally significant functions assigned to the House of Representatives, it is appropriate that the largest possible number of Members be present for this session.
Perhaps the most important element in both proposals was the proposed elimination of state equality in the contingent election process for the President. Instead of each state casting a single vote, each Representative would cast one vote. The change in comparative state voting power in a contingent election would be dramatic. For instance, Wyoming and California, respectively the nation’s least and most populous states, would no longer cast one vote each; instead, under the proposed formula, Wyoming would cast one vote in a contingent election, but California would cast 53, one for each Member of its House of Representatives delegation. The argument here is that the change in formula would be more democratic, reflecting the great differences in population among the states.
Arguments against these proposed amendments could center on the assertion that either one would weaken the federal nature of the existing contingent election process, in which each state casts a single vote. Moreover, it might be noted the contingent election process for both executive officers is roughly symmetrical, with all states having the same weight in election of the President in the House and the Vice President in the Senate. Why, they might ask, change the formula for election of the President, while that for the Vice President remains unchanged? Logic, they might assert, suggests that the same population-based formula be established for the contingent election of both executive officers.
Both H.J.Res. 73 and H.J.Res. 75 were referred to the House Committee on the Judiciary, but no further action was take on either measure before the 110th Congress adjourned. No similar proposal has been introduced since that time.
American presidential elections have generally been dominated by two major parties since the early 19th century, with major party candidates for President and Vice President having won a majority of electoral votes in every election since 1836. A popular third party or independent candidacy, however, has always had the potential of disrupting this traditional rhythm. While they seldom have a realistic expectation of winning the presidency, such efforts carry with them the potential for denying either major party ticket a majority in the electoral college. Such candidacies have, in fact, emerged in four presidential elections since 1968. Another possibility involved the contest over election results in Florida in the closely fought 2000 presidential election; the extended political struggle about which candidate won the state raised the possibility that its electoral votes might be challenged and excluded by Congress, an action that would have denied either candidate a majority of electoral votes, thus requiring contingent election.
Under either of the scenarios cited above, the House and Senate could be called on to choose the President and Vice President in some future election. Barring any comprehensive reform of the existing arrangements, a contingent election would be governed by the provisions of the 12th Amendment and such other supplementary procedures as the House and Senate would establish. Rules adopted for past contingent elections would offer guidance, but would not be considered binding in any future contingent election.
As previously noted, constitutional amendments that would substitute direct popular election and thus eliminate the contingent election process were regularly introduced in Congress through the first decade of the 21st century, but these experienced the fate of the vast majority of proposed amendments: assignment to the appropriate committee, and then, oblivion. By design of the founders, the Constitution is not easily amended; the stringent requirements include passage by two-thirds vote in both chambers of Congress, followed by approval by three-fourths of the states, generally within a seven-year time frame. These constraints have meant that successful amendments are usually the products of several factors, including, but not limited to the following:
a broad national consensus, arrived at after lengthy debate, sometimes measured in decades, that an amendment is necessary and desirable, e.g., the 17th Amendment (direct election of Senators), and the 24th Amendment (the 18-yearold vote); or
an equally broad, but in this case urgent, consensus demanding a response to a galvanizing event or events, e.g., the 12th Amendment itself, and the 25th Amendment (providing for presidential succession and disability, in the wake of the 1963 assassination of President John F. Kennedy); and
the active and persistent support and guidance of prominent members, relevant committee chairs, and chamber leaders in both houses of Congress.
The time and energy of Congress is limited, and the institution must pick and choose from among the most pressing demands for its attention. Would-be constitutional amendments sharing one or more of the characteristics noted above are far more likely to reach “critical mass,” and meet the political and constitutional hurdles faced by such proposals. Failing in that, it seems more likely that existing provisions, such as contingent election, which has been unused since 1837, will remain unaltered unless or until their alleged failings become so compelling that the necessarily large majorities among the public and in Congress and the states are prepared to undertake reform.
The above text was prepared by the Congressional Research Service (CRS), Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis.
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