California and Texas get the same say as Delaware and Wyoming in a contingent election. Plus, Washington, DC, which gets three votes in the Electoral College, would be cut out of the contingent election.
There's nothing to require state delegations to honor the winner of their state's vote. And in closely divided states, the results in single seats, perhaps determined by gerrymandered congressional maps, could swing a delegation's vote.
Heading into the 2024 election, Republican lawmakers held a majority in 26 states, compared with Democrats, who held the majority in 22, with ties in Minnesota and North Carolina. Republicans in North Carolina have changed the state's congressional map, however, and it is likely to have a majority-Republican congressional delegation in January. Republicans are likely to maintain their advantage next year, especially if voters are so split that they deliver a national tie at the top of the ticket.
In Arizona, for instance, who is to say that a potential majority of Republican members of Congress would vote for the Democratic candidate, even if Harris pulled out a narrow win there? Would Alaska's Democratic member of Congress, assuming she wins reelection, vote for the Democrat for president even though her state is likely to go for Trump in November?
Why does this bizarre tie-break system exist?
It's actually meant to be an improvement. The way the Electoral College was first assembled, electors voted for two candidates. Whoever got the most votes was president and whoever got the second-most votes was vice president.
By the time political parties were forming – Federalists and Democratic-Republicans in 1800 – electors needed to coordinate to cast more votes for their presidential pick than their vice presidential pick.
In the 1800 election, a rematch of 1796, Jefferson's Democratic-Republicans beat incumbent President and Federalist John Adams.
But the Democratic-Republicans were poorly coordinated or bad at counting and foolishly cast equal numbers of votes for their presidential pick, Jefferson, and his running mate, Burr.
Out of pique, when the early version of the contingent election rolled around, the Federalists, who still controlled the House at that time, backed Burr. Despite the intervention of Alexander Hamilton, a noted Federalist, it took 36 rounds of voting to finally elect Jefferson.
By 1804, the 12th Amendment was being ratified.
Has a contingent election happened in the years since the tied election of 1800?
Yes. In 1824, multiple candidates got votes in the Electoral College but none of them received a majority, triggering a contingent election.
Amazingly, from today's perspective, all of the candidates who got Electoral College votes that year were from the same Democratic-Republican political party, although they were split into regional sects.
Andrew Jackson won 40% of the popular vote and got the most votes in the Electoral College with 99 of the 131 needed for victory. But the House ultimately picked his top rival, John Quincy Adams, whose father lost that 1800 election.
Jackson would have his revenge with a victory four years later, and John Quincy Adams would round out his career as the only former president to be elected to Congress, the body that made him president.
Another contingent election occurred with the 1836 race, but just for vice president. Virginia's electors did not like Robert M. Johnson, the running mate of election winner Martin Van Buren, and withheld their votes for him in the Electoral College. The Senate later elevated Johnson to the vice presidency in a contingent election.
What about the disputed election of 1876?
In 1876, when there was a contested outcome, the contingent election system was bypassed.
That year, at the height of Reconstruction, the issue was not that no person got a majority in the Electoral College, but rather that three Southern states – Florida, Louisiana and South Carolina – sent multiple slates of electoral votes to Washington, DC, after the state elections were disputed. And in Oregon, there was a dispute over one elector.
Congress created a special bipartisan commission, with one more Republican than Democrats, to determine which candidate should get the 20 disputed electoral votes. They ultimately gave the votes to Republican Rutherford B. Hayes even though Democrat Samuel Tilden got more popular votes.
Hayes then largely ended Reconstruction, perhaps as part of a secret deal that gave him the White House.
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