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  • Justin Haggerty | The Daily Knight

Jan 6th Joint Session and a Contingent Election - History of the 12th Amendment

Justin Haggerty | The Daily Knight

State Legislature Breakdown after 2020 Election

The 12th Amendment to the Constitution provides backup, or standby, procedures by which the House of Representatives would elect the President, and the Senate the Vice President, in the event no candidate wins a majority of electoral votes. Although this procedure, known as contingent election, has been implemented only once for each office since the amendment’s ratification, the failure to win an electoral college majority is theoretically possible in any presidential election. Some contingencies that might lead to an electoral college deadlock include an election that is closely contested by two major candidates, leading to a tie vote in the electoral college; one in which multiple candidates gain electoral votes so that no candidate wins a majority; or an election where a number of electors sufficient to deny a majority to any candidate votes against the candidates to whom they are pledged. Any one of these developments would require Congress to consider and discharge functions of great constitutional significance. Moreover, the magnitude of these responsibilities might well be further highlighted by the fact that an electoral college deadlock would arguably lead to a period of protracted and contentious political struggle. This report examines constitutional requirements and historical precedents associated with the contingent election process. It also identifies and evaluates contemporary issues that might emerge in the modern context.

Origins of the 12th Amendment and Contingent Election

The 12th Amendment to the U.S. Constitution, with its provisions for contingent election, was proposed by Congress and ratified by the states in response to the constitutional crisis that marred the presidential election of 1800 and threatened the still-new American system of government under the Constitution.

Original Action: The Electoral Vote and Contingent Election as Established in the Constitution

The Constitution’s original provisions established a system of undifferentiated voting by presidential electors that proved unworkable after only four elections. Article II, Section 1 of the Constitution required each elector to cast two votes for his two preferred choices for President (at least one of whom was required to be from a different state than that of the elector) but none for Vice President. The candidate who received the most electoral votes was elected President, provided that the total number of votes also was a majority of the total number of electors, not electoral votes. The runner-up was elected Vice President. If no candidate received electoral votes equal to or greater than a majority of electors, or if there were a tie, then the House of Representatives would elect the President from among the five candidates who received the most electoral votes. Again, the runner-up would be Vice President. Voting in this original form of contingent election was by states, with each state’s House delegation casting a single ballot.

The problem was that the Philadelphia Convention of 1787 failed, or perhaps was unwilling, to anticipate the rise and rapid growth of political factions, or parties. Although the Constitution did not contemplate the existence of candidates for Vice President, by 1796, the nascent party organizations offered joint tickets for the two highest offices that included both a presidential and vice presidential candidate, running as a team.

George Washington retired in 1796. During his second term, two political factions, the proadministration Federalists and the anti-administration Jeffersonians, or Jeffersonian Republicans, began to assume most of the classic characteristics of political parties. In the presidential election to choose his successor in that year, both groups offered unified tickets with clearly identified party candidates for President and Vice President. In order to avoid a tie vote in the electoral college, and thus a second round, or contingent election by the House, party strategists planned that one or more of their electors would withhold a vote for the de facto vice-presidential candidate, and cast it for someone else—but neither party was able to “fine tune” the electors’ actions to accomplish this goal. When the results were counted, the Federalists had won a majority of 71 electors to the Jeffersonians’ 68. While Federalist electors all cast their first, “presidential,” vote for their presidential candidate, John Adams, they split their second “vice presidential” vote among six different candidates. Similarly, the Jeffersonian electors all cast their first vote for Thomas Jefferson, but scattered their second vote among four vice presidential candidates. The result was that although Adams was elected chief executive with 71 electoral votes, his rival, runner-up Thomas Jefferson, was elected Vice President with 68 electoral votes.

Constitutional Crisis: The Election of 1800

The deficiencies of the arrangement established in the Constitution became more than an annoyance in the election of 1800, when the two incumbents, President Adams and Vice President Jefferson, opposed each other for the presidency a second time. In a hard-fought contest, the Jeffersonian Republicans prevailed, winning 73 electors to the Federalists’ 65. In a noteworthy omission, especially considering the election results in 1796, all the Jeffersonian electors cast their first vote for presidential candidate Jefferson, but all 73 also cast their second vote for Aaron Burr, his vice presidential running mate. The failure to cast at least one less vote for Burr was an oversight, but it resulted in an electoral college tie between the two, requiring contingent election.

The House and Senate met in joint session to count the electoral votes on February 11, 1801. The tie vote, which had been known well in advance, was announced, and the House adjourned to its chamber to begin the contingent election procedure. The situation was complicated by the fact that the count session was conducted by the lame-duck Sixth Congress, in which the Federalists controlled the House of Representatives. After the extremely bitter campaign, certain Federalist Members were inclined to vote for Burr to thwart Jefferson. At the same time, some Jefferson supporters threatened to take up arms if he were denied the presidency. Alarmed equally by threats of violence and the prospect of Burr as President, Alexander Hamilton, former Treasury Secretary and a senior Federalist leader, intervened. He urged Federalist Representatives to put aside partisan rancor in favor of the national interest and vote for Jefferson.

The first round of voting revealed that Hamilton’s appeal had had limited effect: a number of Federalists had voted for Burr, leading to deadlock. Of 16 state delegations in the House, 8 supported Jefferson, 6 Burr, and 2 were divided—the votes of 9 states would be necessary to elect. Nineteen ballots were cast the first day, and the House returned to cast an additional 15 on February 12, 13, 14, and 16 (February 15 fell on a Sunday in 1801), but the state results remained unchanged. Meanwhile, behind the scenes, negotiations continued to break the impasse. On Tuesday, February 17, the House cast a 35th ballot, which showed the same results as the preceding 34, but on the next round, a Federalist Burr supporter from Vermont cast a blank ballot, swinging that state into Jefferson’s column and delivering him the presidency. With the shift in momentum, the previously divided Maryland delegation also switched to Jefferson, while Burr supporters Delaware and South Carolina changed their votes, moving those states from Burr into the divided column. The final tally was Jefferson, 10 states, and Burr, 4, with 2 states divided.

Congress Responds: The 12th Amendment

By the time the Seventh Congress convened, support was spreading for a constitutional amendment that would establish a separate electoral vote for President and Vice President. Federalist opposition prolonged debate over the proposal, delaying approval until the first session of the Eighth Congress, which convened on October 17, 1803, but on December 9 of that year the amendment was submitted to the states. The ratification process proceeded with notable speed for an era characterized by poor communications and state legislative sessions that were both short and infrequent. By July of 1804, 13 of the 17 states then in the Union had ratified the proposal, and on September 25 of that year, Secretary of State James Madison declared the new 12th Amendment to be ratified, so that it was in effect for the 1804 presidential election, which followed within weeks.

The Amendment made important changes in electoral college procedures. First, the electors continued to cast two votes, but they would henceforth cast separate ballots for President and Vice President, one vote for each office. This change was an implicit concession to the prevalence of unified party tickets for the two offices. Second, a majority was still required to win both positions, but reflecting the separation of votes for the two offices, it would be a majority of electoral votes, rather than electors. Contingent election procedures were retained largely intact, aside from two revisions. First, the amendment eliminated the provision that the electoral college runner-up would be Vice President; contingent election for that office was transferred to the Senate. Second, it reduced the number of presidential candidates eligible for consideration by the House in a contingent election from five to three. Finally, it established the same qualifications for Vice President as for President. Qualifications for the vice presidency had been deemed unnecessary by the Convention, since all contenders were candidates for the presidency, and were therefore required to meet that position’s standards.

In one sense, the 12th Amendment has been a substantial success: its separation of presidential and vice presidential ballots has guaranteed that there will never be an exact repeat of the 1800 election. Much of the electoral stability achieved in the ensuing two centuries may also be attributed to the domination of American presidential politics by the two-party system, which was implicitly sanctioned in the amendment. Notwithstanding the complaints of would-be minor party or independent candidacies, the two-party system, in conjunction with the winner-take-all system of awarding electoral votes, generally delivers an electoral college majority to one ticket. One potential drawback is that it has also tended to deter presidential bids by independent candidacies or new parties, for better or worse. Contingent elections have been conducted only twice since ratification of the 12th Amendment: for President in 1825, following the election of 1824; and for Vice President in 1837, following the election of 1836.

Notwithstanding its demonstrated success, the amendment remains in place as a fallback in the event of electoral college deadlock, and although such an event is arguably improbable, there is, as noted earlier, a range of circumstances that might lead to contingent election, including the following: three or more candidates (tickets) split the electoral vote so that none receives a majority; “faithless” electors in sufficient numbers either cast blank ballots or vote for candidates other than those to whom they are pledged so as to deny a majority to any ticket or candidate; or the electoral college ties at 269 votes for each candidate (ticket).

Implementing the 12th Amendment: Contingent Elections Since 1804

As noted previously, Congress has conducted contingent elections twice since the 12th Amendment was ratified. The first instance occurred in 1825, following the presidential election of 1824. In this election, four candidates split the electoral vote for President, requiring contingent election in the House of Representatives. In the second case, the Senate elected the Vice President in 1837, when no candidate for the second office received a majority of electoral votes in the 1836 election.

1824/1825: Contingent Election of the President in the House of Representatives

The presidential contest of 1824 was a milestone election in that the revolutionary generation, the “greatest generation” of that epoch, passed from the scene as James Monroe retired from the presidency. The patrician ascendancy of the republic’s first decades, when Virginia planters held the presidency for eight of the first nine terms, was giving way to a more democratic, rough-and tumble political milieu. One contributing development was the increasing influence of the new states of the west and southwest, in which frontier cultures were less deferential to the established order. At the same time, states throughout the Union continued to liberalize their voter requirements, leading to rapid growth in the electorate as property and income qualifications were dropped, at least for white males. Moreover, the democratization trend also extended to the electoral college: for the election of 1800, in 10 of 16 states the legislature picked electors, with no popular vote at all. By 1824, the number of states had grown to 24, of which 17 used some form of popular vote for presidential electors. In fact, 1824 is the first presidential election for which reasonably complete popular vote election results are available.

By 1824, the Federalists had shrunk to a regional rump party, confined largely to New England; the party had not nominated presidential candidates in either the 1820 or 1824 elections. Since 1800, the Democratic Republicans, directly descended from the Jeffersonians, had controlled the presidency and both houses of Congress for over two decades. Throughout this period, the party’s presidential nominees generally emerged by consensus, and were proposed by the Democratic Republican congressional caucus. Moreover, for the succession elections of 1808 and 1816, the caucus nominated the incumbent Secretaries of State, James Madison and James Monroe, as the party’s choice for President. By this reasoning, Monroe’s Secretary of State, John Quincy Adams, son of the second President, was the logical nominee, but in 1824, no fewer than three other candidates presented themselves, leading to multiple nominations by the contending factions. These included Adams; Treasury Secretary William Crawford, another establishment favorite; Senator Andrew Jackson, hero of the Battle of New Orleans and a favorite son of the emerging western states; and House of Representatives Speaker Henry Clay, also a western favorite, and one of the ablest politicians of the day.

As the election results became known late in 1824, it was clear that the contest had resulted in an electoral college deadlock. Andrew Jackson won a clear plurality of both popular and electoral votes, but failed to gain the constitutionally-required electoral vote majority of 131 (out of 261). For the record, Jackson won 99 electoral votes, Adams followed with 84, Crawford was next with 41, and Clay came in last with 37. Under the 12th Amendment, Jackson, Adams and Crawford, the top three electoral vote getters, were considered by the House, and Clay, the fourth candidate, was excluded by the terms of the amendment.

Although Clay was out of the running, as House Speaker he wielded great influence, and ultimately threw his considerable support to Adams. This led to charges by Jackson partisans that Clay had offered his backing in return for the promise of a high office in an Adams administration—a “corrupt bargain,” as they termed it. Clay’s approval was regarded as an important boost to the New Englander’s chances, however, and when contingent election was conducted in the House on February 9, 1825, Adams was chosen on the first ballot, with 13 state votes to Jackson’s seven, and four for Crawford.

Eleven days later, Adams announced that Clay would be his Secretary of State, giving fresh credence to the “corrupt bargain” charge. Adams and Clay always denied it, but true or not, the charge overshadowed the Adams presidency. It both enraged and energized Jackson and his supporters, who started planning the Tennessean’s next presidential campaign immediately. Four years later, Jackson won the rematch, soundly defeating Adams in the 1828 election.

1836-1837: The Senate Elects the Vice President

Just 12 years after the contentious presidential election of 1824, the Senate was called on to elect the Vice President for the first and only time to date.

In 1836, Vice President Martin Van Buren was the Democratic Party’s choice to succeed retiring President Andrew Jackson. The party’s national convention16 also nominated Representative Richard Mentor Johnson for Vice President. The opposition Whig Party, successor to the departed Federalists, was unable to agree on a single candidate for either President or Vice President, fielding four candidates for the highest office, and two for the vice presidency. In the general election, Van Buren won just a slight popular vote majority, but took a commanding lead of 170 electoral votes to the 124 cast for the several Whig candidates. Johnson, however, won 143 electoral votes, five short of a majority, thus requiring a contingent election in the Senate.17 The electoral votes were counted by the 24th Congress at the traditional joint session on February 8, 1837, at which time the Senate immediately returned to its own chamber to elect the Vice President. Since the Senate’s choice was limited by the 12th Amendment to the two candidates who won the most electoral votes, rather than three, as required for presidential contingent elections, it chose between Johnson and his leading Whig opponent, Representative Francis Granger. Johnson was elected by voice vote in one round, with 33 votes to 16 for Granger.

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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