Published by The Lawfare Institute
in Cooperation With
A key lesson of the 2020 election was that the process for electing the president is open to abuse. One notable vulnerability was the 19th century federal law governing the electoral count process—the statute’s vague and archaic language provided a legal pretext for the subversive efforts that culminated on Jan. 6, 2021. Fortunately, lawmakers of both parties recognized this threat and passed the Electoral Count Reform Act in December 2022 to modernize and clarify the rules for casting and counting electoral votes.
Yet, another legal relic of the 19th century looms as a possible threat in 2024: the 12th Amendment. It requires Congress to select the president and vice president if no one gets a majority in the Electoral College through a process known as a contingent election. With two candidates, an Electoral College tie is always possible—but if a third-party candidate can win any electors, the likelihood of a majority winner decreases substantially. Today, the political organization No Labels is floating a possible bipartisan “unity ticket” that, unlike other third-party efforts, could plausibly win a state or two in 2024 and keep anyone from getting 270 electors.
No one can predict what would happen next, because there is no federal law governing how a contingent election would be administered. Gerald Ford, in his time, thought such a scenario would be “tragic.” Today, the foreseeable outcomes range from destabilizing to calamitous. Unsettled legal and procedural questions permeate nearly every aspect of the process, and in today’s political environment, high-stakes legal disputes and constitutional hardball would be inevitable. Even if Congress could avoid a prolonged presidential vacancy, they might elevate to the White House a candidate who decisively lost at the ballot box and in the Electoral College.
Despite the importance of these issues, there is scarce scholarship on this topic. In our research for a September 2023 report exploring the plausibility and consequences of a contingent election, conversations with constitutional scholars time and again ended in the same place: solemn concern that if no candidate secures a majority of electors in November 2024, what comes next would be chaos and crisis.
The Contingent Election Process
Article II, Section 1, of the Constitution prescribes the process of electing the president and vice president through the Electoral College, and its general operation is well known. Every state has a number of electors equal to its seats in the House and Senate (Washington, D.C. has the same number of electors as the smallest state), electors cast their votes for their party’s pledged candidates, and the winners of the Electoral College become president and vice president.
However, winning the most votes in the Electoral College does not ensure victory—only a majority does. In the absence of a majority, the 12th Amendment prescribes the method to resolve the election: The House of Representatives selects the president, and the Senate selects the vice president. The Constitution makes clear just a few elements of this contingent election process:
- On Jan. 3, the newly elected Congress convenes, as the House elects the speaker and members are sworn into office. On Jan. 6, Congress meets in joint session to count electoral votes. If no candidate receives a majority of electoral votes, the House then turns “immediately” to the contingent election.
- House members choose the president among the three presidential candidates who received the greatest number of votes in the Electoral College. Instead of voting on an individual basis, however, House members vote as state delegations. Each state gets one vote, and a majority of states (26) is required to select the president.
- The Senate selects the vice president from among the top two vice presidential candidates in the Electoral College, and a candidate becomes vice president with majority support (51 votes).
- Washington, D.C. does not participate in either the House or Senate proceedings.
- If the House is unable to select a president by Jan. 20, the vice president-elect serves as acting president until the House renders a decision.
- If neither the House nor the Senate make a selection by Jan. 20, the next eligible person in the presidential line of succession would serve as acting president until either chamber fulfills its respective duty.
In the 50 years after the Constitution was ratified, a contingent election was triggered three times. In 1801, the House selected Thomas Jefferson over Aaron Burr on the 36th ballot. Three years later, the 12th Amendment was ratified to fix several flaws in the original process for electing the president, hoping to reduce the chances of future contingent elections. Then in 1825, Andrew Jackson won a clear plurality of the popular vote and Electoral College, but in the subsequent contingent election, the House selected John Quincy Adams as the sixth president. Jackson channeled widespread public frustration with this outcome into a populist groundswell that delivered him a landslide victory in 1828. And then in 1837, after an intraparty dispute deprived the leading vice presidential candidate of a majority in the Electoral College, the Senate promptly put him in office. Since then, the Electoral College has always produced majority winners, obviating the need for any further contingent elections.
Risks Arising From a Contingent Election
In the absence of any federal law establishing rules for a contingent election and in light of the high stakes, both Democrats and Republicans would have strong incentives to exert maximum influence over the process in the hopes of securing victory—or, at a minimum, forestalling defeat.
If no candidate emerges from the 2024 election with an Electoral College majority, the postelection period and convening of the 119th Congress could become extraordinarily fraught and the risk of procedural abuse, delay, and crisis dangerously high. The threat to a peaceful and lawful transition of power level could quickly match, and then surpass, what the country endured in January 2021. Some of the risks we foresee include:
- Faithless electors and court challenges could consume the process and alter the results. Following Election Day, if no candidate appears to have secured an Electoral College majority, some electors—even those from states with faithless elector laws, which require electors to vote for their pledged candidates—could have a powerful incentive to attempt to cast a vote for someone else. Those efforts could lead to contentious and potentially determinative court challenges and trigger objections when Congress convenes in joint session on Jan. 6 to count electoral votes, complicating that process and inviting attempts to abuse it.
- Narrow margins in the House of Representatives could empower a small handful of lawmakers to make extreme demands. The prospect of a contingent election would inevitably have spillover effects on the preceding speakership election and joint session, making it more likely that these would be contentious and lengthy affairs. Given the probability of another razor-thin House majority in 2025, just a small handful of lawmakers could exert enormous leverage over the speakership fight. With a contingent election on the horizon, key concessions around contingent election procedures could be the price for their vote for speaker. There is already a latent risk (discussed below) that any House majority would adopt self-serving rules that would undermine the legitimacy of the contingent election process, but a narrow House majority could empower a small handful of lawmakers far outside the mainstream, handing them an effective veto over the selection of the president.
- Determination of the presidency could hinge on a single House seat. Which party controls the House always matters, but in the context of a contingent election, those stakes become monumental: The party with a majority of seats can set the rules that govern the contingent election. Republicans currently hold a narrow majority of seats in the 118th Congress, but Democrats could easily make gains in 2024.
- The House majority could manipulate voting rules or ensure a stalemate. Although the 12th Amendment requires the House to vote by state delegation, it does not establish the quorum required within each delegation, nor does it establish whether a plurality, majority, or supermajority of members in a state are required to reach a decision. The text is likewise silent about what happens when a state delegation fails to meet the prescribed vote threshold.
In the contingent election context, which party controls individual seats takes on outsized importance since a single member could determine whether a state delegation registers support for one candidate or another, or fails to meet the threshold for any candidate. As a result, the majority party in the 119th Congress could have strong incentives to delay or refuse to seat members of the opposite party, if doing so could alter the outcome in pivotal state delegations.
To address these and other questions, the House would need to adopt a special rule to govern the contingent election process. The party controlling a majority of House seats would face strong incentives to adopt a rule that favors their desired outcome, or at least ensures that the opposing candidate cannot secure a majority of state delegation votes. If this party also controls a delegation majority in at least 26 states, the House likely would adopt the delegation majority threshold used in 1825. However, if Democrats retake the House majority in 2024, Republicans likely will continue to hold a delegation majority in at least 26 states, which could prompt Democrats to adopt some other rule. This tension could leave the House deadlocked on Jan. 20, triggering the presidential line of succession.
- A presidential candidate could die, with no method to replace them. Under the 12th Amendment, the House must choose the president from the top three candidates in the Electoral College. However, if one of those candidates dies after the Electoral College meets, there is currently no method to replace them in the contingent election. This is the only stage in the presidential election process without a method to replace a deceased candidate. (While the 20th Amendment authorizes Congress to pass a law to fill this gap, no such laws have been enacted.)
As a result, an untimely death could categorically prevent the House from giving the presidency to its preferred party—even if that party won overwhelmingly at the ballot. While there is always an unfortunate risk of political violence or assassination during a presidential campaign, the risk is pronounced in this scenario, given the potential to change which party controls the White House.
- A Senate filibuster could lead to a vice presidential vacancy. With an elevated risk of a House stalemate, the Senate’s role in selecting the vice president in a contingent election would take on additional importance. Even so, the Senate may contend with rules issues of its own. Absent unanimous consent, the chamber’s standing rules would apply, meaning that 60 senators would need to agree to cut off debate in order to proceed to the vice presidential vote. With neither party expected to hold anything close to 60 votes in 2025, meaningful bipartisan support would be needed to defeat an anticipated filibuster. Absent such support, a majority of senators could invoke the “nuclear option,” amending the rules to allow a simple majority to cut off debate on the motion. If the Senate is unable to act under either scenario, the vice presidency would remain vacant.
- Uncertainty over presidential succession could provoke a high-stakes dispute. Under the Presidential Succession Act, if the presidency and vice presidency remain vacant on Inauguration Day, the speaker of the House is next in line to serve as acting president, followed by the president pro tempore of the Senate. However, the law requires those legislative officers to first resign from their seats in Congress. If the anticipated presidential vacancy is undetermined in length, these individuals may decline the opportunity to serve a potentially brief term in the White House and retain their leadership roles in Congress. If both the speaker and president pro tempore declined, the highest ranking qualified cabinet member of the prior administration would take over instead.
For vacancies that arise during a presidential term, there is an unsettled debate about whether these congressional leaders are constitutionally eligible to serve as acting president under Article II. A contingent election could risk a vacancy at the start of the term, and the prevailing view among scholars is that these legislative officers would be able to serve as acting president under the 12th Amendment. Even so, as Scott Anderson has noted, there is a minority view that the separation of powers prevents these officials from serving as acting president in any scenario.
- The vice president could cast a tie-breaking vote for themself. In the event that the Senate vote is tied, it is an unresolved question if the sitting vice president, acting in their capacity as president of the Senate, has the authority to cast a tie-breaking vote—potentially casting a decisive vote for themself over their campaign opponent.
- The House and Senate could select political adversaries as president and vice president. Given the frequency of split control in Congress, the House and Senate could select political adversaries for the presidency and vice presidency who were unwilling to work together. This situation was destabilizing the two times it happened in American history (in 1796 and 1800), inspiring ratification of the 12th Amendment to minimize the chances of it ever happening again. It was the prospect of this outcome that prompted Jefferson in 1823 to describe the contingent election process as “the most dangerous blot in our constitution, and one which some unlucky chance will ... give us a pope and antipope.”
Underlying nearly all of these scenarios is latent uncertainty as to which contested issues would be resolved by the courts and which would not. The U.S. Supreme Court may be wary to interpose in disputes between the other two branches, the House and Senate, or factions within one chamber. Whether such disputes amount to a justiciable case or controversy under Article III could be fact specific. The Electoral Count Reform Act clarified the role of the courts in connection to the casting and counting of electoral votes, but many questions remain about how to resolve the conflicts that might arise in the contingent election context. Thus, there is not only uncertainty on the substance of key legal and procedural questions—but a fundamental question about which branch will have the final say in resolving those disputes.
The Plausibility of a Contingent Election Today
While nearly two centuries have passed since the last contingent election, prominent third-party bids have produced some close calls. The 1948 presidential race is best remembered for Harry Truman’s surprising reelection, but if merely 12,000 votes in California and Ohio had instead been cast for Thomas Dewey, no candidate would have had an Electoral College majority. After carrying four states and 39 electors as a Dixiecrat, Strom Thurmond likely would have had powerful leverage to promote his segregationist platform in a contingent election.
In 1968, George Wallace sought to replicate and complete this strategy. While Wallace carried five states and 46 electors, Nixon secured an Electoral College majority with a series of narrow plurality victories in competitive states. Had the Democratic Party not been mired in historic controversy and tragedy at the time, it is easy to imagine those small margins disappearing and no candidate reaching a majority in the Electoral College.
Today, a third-party ticket could trigger a contingent election simply by winning a small handful of electors. This is because today’s electoral map reliably delivers each major party a sizable and relatively equal number of electors, leaving only a small number of competitive races. As a result, there is a reasonable likelihood that the leading candidate will barely exceed the majority threshold. For example, George W. Bush won in 2000 with 271 electors, meaning that a third-party upset win in any of the 11 small states Bush carried would have triggered a contingent election.
Even though Donald Trump and Joe Biden each won more than 300 electors in the last two cycles, each election just as easily could have concluded with a narrow electoral margin—small enough that any third-party upset could have forced a contingent election. In 2016, if 30,000 more voters in Pennsylvania and Wisconsin had supported Hillary Clinton, Trump would have had 271 pledged electors. And if Joe Biden had received a little less support in Georgia and Pennsylvania in 2020, he would have landed at 270. Next year, if a few swing states break each way, there could be a razor-thin electoral majority for one side or the other. And then all it would take is a third-party upset in one state. We illustrate a few plausible scenarios in our recent report.
Several candidates are pursuing independent or third-party bids in 2024, but only one effort has the resources to win any electors: a possible centrist ticket floated by No Labels. The group has already secured ballot access in 12 states so far, including places like Alaska, Maine, and Utah—states that have defied standard political conventions in the past in favor of independent political leaders and movements. The use of ranked-choice voting in Alaska and Maine could make a third-party upset even more likely. No Labels has raised upward of $60 million, and it could be well situated to compete in relatively cheap media markets that are unlikely to be top priorities for the major-party campaigns. Concerningly, No Labels leaders are aware that their campaign could likely produce a contingent election—and are proceeding forward nonetheless.
Following the template of the Electoral Count Reform Act, Congress could meaningfully reduce the risks outlined above by enacting a federal law establishing equitable rules and procedures to govern any future contingent election well in advance of an actual contest. However, given the scant attention on this issue to date and the challenge of addressing these issues in the middle of a closely contested presidential election, reform during the 118th Congress seems unlikely. Accordingly, the threat remains: To the extent a third-party effort could pull off an upset victory in at least one state next year, we face the prospect of a constitutional crisis in January 2025.