The Uncertainty of “Contingent Election” Procedures

Rick linked earlier today to a new analysis of the risk that a No Labels presidential ticket could cause no candidate to win a majority of electoral votes, triggering the Twelfth Amendment’s antiquated “contingent election” procedure (last used in 1824). I’m inclined to think it unlikely that the No Labels ticket would win any electoral votes; after all, Ross Perot didn’t in 1992 despite winning almost twenty percent of the national popular vote. Much more likely, as been widely discussed, is that the No Labels presidential candidate will take enough votes from Biden to cause Trump to win an outright Electoral College majority when otherwise Biden would have.

Still, the risk of a contingent election is not zero, and it’s worth considering what might unfold if it were to occur. Most commentators who have considered this assume, as does today’s new analysis, that Trump would win the contingent election in the House because the Twelfth Amendment provides that each state’s House delegate has one vote in this anomalous procedure, and Republicans in the House can be expected to hold a majority of seats in a majority of state delegations (26), which is the numerical threshold that the Twelfth Amendment requires. This assumption is hardly unreasonable and indeed the most probable result if the House were to required to go down this road. But there are a number of uncertainties that cloud any attempt at prediction.

For one thing, Democrats might be the majority party in the House on January 6, 2025, even Republicans have the majority of seats in 26 state delegations. As the majority party, Democrats might be able to establish rules for conducting the contingent election that could complicate the proceedings. For example, suppose the House adopted a rule that required each state delegation to vote by secret ballot when making its choice among the three candidates in contention: Biden, Trump, and the No Labels candidate. If No Labels nominates a non-Trump Republican for the top its ticket, as they have indicated they will, it’s possible that this secret ballot vote could fracture Republicans in the House in the same way that House Republicans have been fractured in their secret ballot votes for a new speaker. If House rules require a candidate to receive a majority within a state delegation in order to receive that state’s single vote, this kind of fracturing could prevent any candidate from reaching the constitutionally necessary majority of states–in which case the Twentieth Amendment would provide that whomever the Senate elected as Vice President would serve as Acting President until 26 state delegations in the House were able to agree upon a candidate. By contrast, if House rules permitted a candidate to win a state delegation’s single vote by receiving a merely a plurality, and not a majority, within the state delegation, then it’s at least conceivable that Biden might be able to win the contingent election in the House in the same way that Hakim Jeffries would be the new House Speaker if only a plurality rather than a majority were required (because of the same kind of fracturing among House Republicans).

What is more, suppose the U.S. Supreme Court hasn’t definitively settled the merits of the issue whether or not Trump is disqualified under section 3 of the Fourteenth Amendment. Suppose, again, that the Democrats are the majority party in the House. Would they, by House rule, be able to disqualify Trump as one of the candidates entitled to be considered in the contingent election even if the Senate did not concur in this judgment of disqualification? The text of the Constitution is unclear on this point, and the new Electoral Count Reform Act does not purport to address this particular situation. Would the Supreme Court adjudicate this constitutional question, or invoke the “political question doctrine” to rule it beyond its authority and within the exclusive control of Congress itself?

These uncertainties are just some of the potential pitfalls that could plague a contingent election if it happened. The group Unite to Protect Democracy has produced a report that discusses some of the other dangers that could arise. One is that some House seats necessary to determine which party has a majority could themselves become mired in contestation over which candidate won, preventing organization of the House and election of a new Speaker–and thus lead to the incapacity of the House to conduct the contingent election at all.

The basic point is that seeking to provoke a contingent election, as No Labels now apparently wishes to do, is truly playing with the proverbial fire. We can speculate but cannot really know what would happen. In addition to all the uncertainty in Congress itself, there would also be possibility of severe turmoil in the streets.

It is certainly understandable why No Labels would want to field a third presidential ticket next year, especially with Biden and Trump as the two major-party nominees. But the unavoidable reality, as I’ve said many times before, is that our presidential election system is not currently equipped to handle more than two candidates. Unless and until states introduce ranked-choice voting, or some other form of majority-winner requirement, for the appointment of presidential electors, the only realistic role for third or additional candidates is to undermine the capacity of the system to make an accurate determination of which major-party candidate is truly preferred by a majority of voters in enough states to form an Electoral College majority. Given the stakes of the 2024 election, next year would be the worst possible time imaginable for a third-party ticket to undermine the existing system in this way.

Share this: