Clarifying the Possibility of a Contingent Election under the Twelfth Amendment
As we get closer to the election, a number of articles have been published offering legal explainers for how the process under the new Electoral Count Reform Act of 2022 would work. These have been broadly correct in most details, but one common claim reflects a confusion worth clarifying. Specifically, the conditions under which a “contingent election” could be triggered, sending the race to the House under the procedures of the Twelfth Amendment.
A contingent election has been a particularly acute fear among Democrats, because in the House it is not each representative who would have one vote, but each state’s delegation. An absolute majority of states, twenty-six, is required to win. It is likely Republicans will control more state delegations than Democrats even if Democrats have an overall majority of the House. It is also possible, because of states being evenly split, that no party would control the needed twenty-six votes. This was the case last time, even if a contingent election had been triggered, due to Republican members opposed to the effort in Wyoming and Michigan.
The most obvious way a contingent election could happen, though it’s unlikely, would be an exact 269–269 tie in the Electoral College. Even less likely would be a third candidate winning enough states, a strategy attempted several times in American history but never successful. There are no prominent third party candidates with such a chance in this election. Under these scenarios, no candidate would then have “a majority of the whole number of Electors appointed,” which the Twelfth Amendment requires to avoid a contingent election. There are 538 electoral votes, so normally a majority would be 270.
The other possibility frequently discussed is that Congress, during the electoral count on January 6, 2025, would reject enough electors so that no candidate reaches 270 votes. However, the form of the objection matters here, and the kind of objection most often floated by Trump supporters would not result in a contingent election.
This distinction arises from the implications of the Constitution itself, but is codified by ECRA with two different provisions: 3 USC §15(d)(2)(B)(ii)(I) and 3 USC §15(d)(2)(B)(ii)(II). Try reading those citations out loud five times fast. But more simply, the first kind of objection is that the electors were not “lawfully certified.” The second kind of objection is that the votes of valid electors were not “regularly given.”
An objection that electors were not lawfully certified would be the implication of claiming a candidate did not really win a state’s popular vote, or did not do so lawfully, and so that party’s electors were not lawfully certified. This kind of objection is intended to be foreclosed by ECRA altogether, by requiring only a single certified slate of electors as determined under state law and confirmed by possible litigation, as provided under other sections of the law. The whole point is that sitting in judgement of a state’s popular vote result is not within the proper purview of Congress. The provision remains only for the slim possibility that those mechanisms have failed and Congress is presented with a slate of electors not in compliance with the law’s detailed procedural definition of “lawfully certified.” Electoral certificates to the contrary would never reach the joint session unless the law is already being broken.
An objection that votes were not “regularly given” would mean the electors themselves were properly appointed but they somehow then cast invalid votes. This would cover, for example, if the electors voted for an ineligible candidate, not entirely hypothetical in this race, but lacking serious support in Congress. It would also apply if the electors voted for two candidates for president and vice president who are both residents of the same state as the electors, which is not allowed. It would in theory also include failure of the electors to meet and vote on the required day, which the Constitution requires to be the same throughout the United States, or if the electors failed to certify their votes in the form required.
The first kind of objection, lawfully certified, would have the effect of reducing the “whole number of electors appointed,” because its contention is that the rejected electors were not really electors at all. This would mean the denominator for determining a winning majority is likewise reduced. It would be the same as saying the state simply failed to appoint any electors, as southern states did during the Civil War. In such a case, whoever has a majority of the votes cast by the remaining electors, unless there is a tie, would be directly elected. There would be no contingent election in the House.
Only the second kind of objection could result in the total number of electors still being 538, thus leaving the winning majority threshold at 270. But this kind of objection has little relevance to the common theories advanced by Trump supporters in the last election and being readied for a possible repeat attempt. To make an objection of this nature would be conceding that Harris really did win the relevant state, the Democratic electors were properly certified, and yet those electors somehow cast invalid votes.
The law makes this distinction clear, carefully tracking the Constitution’s text. 3 USC §15(e)(2) provides that the whole number of electors is reduced only if a state has failed to appoint the number of electors to which it is entitled, or else an objection is sustained under “subsection (d)(2)(B)(ii)(I)” (emphasis added). That is, a “lawfully certified” objection, but not a “regularly given” objection.
In other words, the kind of objection which could trigger a contingent election is also the kind of objection made effectively impossible by ECRA, because “lawfully certified” objections can only be raised if Congress is somehow presented with a slate of electors in defiance of a federal court ruling. ECRA requires such a question to be decided in the courts prior to January 6, with that outcome being binding on Congress. The concept of Congress choosing between dueling slates of claimant electors, as envisioned under the previous Electoral Count Act of 1887, is no longer applicable.
As a practical matter, even with the possibility of narrow Republican majorities in both the House and Senate, it is plain not enough would vote in favor of an attempt to overturn the election. ECRA was co-sponsored by ten Republican senators, and passed out of committee with only one Republican vote against it. In 2021, about two-thirds of House Republicans voted for the objections, and in the Senate, only eight voted for one or both of the two objections considered. Considering that any plausible Republican majorities would have only a few votes to spare, possibly as few as just one, majorities in both chambers will be out of reach. Even if higher shares of the GOP members vote that way, it would require near-unanimity for an idea already firmly rejected by many Republicans.
Attempts to subvert the outcome of the 2024 election are serious and ongoing, and merit serious opposition. But a contingent election in the House is not how such an effort would play out, and popular explainers of the law should avoid erroneously suggesting otherwise.