Andy Craig
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. 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. » Read More
https://www.cato.org/blog/clarifying-possibility-contingent-election-under-twelfth-amendment