Clarifying the Possibility of a Contingent Election under the Twelfth Amendment
Andy Craig
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.
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Here are some of the main points Andy Craig examines for your awareness.
A contingent election could occur under the Twelfth Amendment if no candidate wins a majority in the Electoral College.In a contingent election, the House of Representatives votes by state delegation, with each state having one vote, requiring a majority of 26 states to win.A 269–269 Electoral College tie or a third-party candidate winning states could trigger a contingent election, though both scenarios are unlikely.Congress rejecting enough electors to prevent a candidate from reaching 270 votes is a concern, but the type of objection matters.The Electoral Count Reform Act (ECRA) of 2022 codifies two types of objections: “lawfully certified” and “regularly given.”“Lawfully certified” objections reduce the total number of electors and could result in a winner without a contingent election, while “regularly given” objections do not change the 538-elector threshold.The ECRA limits Congress’s ability to overturn a state’s certified electors, minimizing the likelihood of a contingent election.Even with narrow Republican majorities, it is unlikely enough members of Congress would vote to overturn the election under current law.Attempts to subvert the 2024 election are ongoing, but a contingent election in the House is not the expected mechanism.
To read the full piece: https://www.cato.org/blog/clarifying-possibility-contingent-election-under-twelfth-amendment
