The 2024 presidential election has already delivered some remarkable, unexpected moments. A sitting president dropping out of the race. A former president becoming a convicted felon. Multiple assassination attempts. The list goes on and on.
With polls indicating an astonishingly close race, another extremely unlikely—but not impossible—twist has been floated by some observers: a tie in the Electoral College. If Donald Trump and Kamala Harris each wind up with 269 electoral votes instead of one candidate crossing the 270 threshold required to win, then the U.S. will be treated to its first “contingent election” in almost 200 years.
In that event, it will fall to Congress to choose the next president. Lord help us.
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What is a contingent election?
A contingent election is what happens when no candidate wins an outright majority of electoral votes. That could theoretically happen for a few reasons, including a third party winning enough electoral votes to prevent another leading candidate reaching 270, or if so-called “faithless” electors choose to break their pledge to vote for their party’s nominee.
It can also happen in a straight tie between two candidates.
Under the provisions of the 12th Amendment, the House of Representatives would then choose the president. Each state delegation would be given a single vote to cast for their preferred choice out of the three candidates with the most electoral votes. Whoever receives 26 votes or more would become president.
It’s also worth noting that Washington, D.C., which is allocated three electors in the Electoral College, wouldn’t get a vote in a contingent election because it’s not a state.
A newly elected Congress would vote in such a scenario, according to the Congressional Research Service. As such, the outcome of congressional races would have a major impact on the vote for the president.
Going into the 2024 election, Republicans enjoy majority control of 26 state delegations. Democrats have the majority in 22, while Minnesota and North Carolina are tied.
Decisions, decisions...
Exactly how state delegations would choose to cast their single vote for president is unclear. They would not be legally obligated to vote for whichever candidate had won the national popular vote or even the candidate who’d won the most votes in their state.
While the House chooses the president, the Senate would choose the vice president. Each senator would be allowed to cast one vote for their choice from the two vice presidential candidates with the most electoral votes. Whichever candidate gets 26 or more votes in the Senate vote wins.
Because the president and vice president would be chosen in separate votes, it’s possible that candidates from opposing parties would be elected. For instance, if the Republicans and Democrats retain their respective control of the House and Senate, that could result in Donald Trump returning to the White House with Tim Walz as his vice president.
Other strange outcomes are possible. A contingent election would take place right after the new Congress meets to count and certify electoral votes on Jan. 6. If House state delegations fail to elect a president by Inauguration Day—Jan. 20—then the vice president-elect would temporarily act as president.
In the event that the Senate is also hopelessly deadlocked and does not elect a vice president by Inauguration Day, then the House speaker would act as president until a vice president or president are chosen.
Unprecedented? Not exactly
Again, a contingent election remains unlikely—but it has happened before. Since the 1804 ratification of the 12th Amendment, there have been two such elections.
In 1824, four presidential candidates won Electoral College votes. Andrew Jackson had the most—99—but fell short of the 131 required at the time for a majority. The resulting election in the House resulted in Jackson’s rival, John Quincy Adams, being elected president.
Just 12 years later, in the 1836 race, another contingent election occurred, but only to elect the vice president. Virginia’s electors became “faithless,” refusing to cast their 23 Electoral College votes for Richard M. Johnson, the running mate of Martin Van Buren, even though Van Buren had won the election. A contingent election in the Senate led to Johnson being elected as vice president anyway.
Find the Daily Beast’s coverage of the 2024 election here. Subscribe to The New Abnormal on Apple Podcasts, Spotify, Google Podcasts, Stitcher, Amazon Music, or Overcast.
