united-states us-constitution elections
What triggers a contingent election?
<p>I have read many opinion articles which discuss the possibility that some states fail to appoint any presidential electors (as actually happened with the state of New York in our first federal election). And they often go on to say something to the effect that, <strong>&quot;if nobody gets to 270&quot;,</strong> then the House of Representatives elects the president (and the Senate elects the vice-president).</p>
<p><strong>Is that correct?</strong></p>
<p>I am not a lawyer, but I read the plain language of the 12th amendment (emphasis added):</p>
<blockquote>
<p>The person having the greatest number of votes for President, shall be the President, if such number be <strong>a majority of the whole number of electors appointed;</strong> and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.</p>
</blockquote>
<p>If for some reason the states of GA, MI, PA, and WI (to pick four states at random) did not appoint any electors this time around, then if I did the math right, there would only be 476 electors. In that case it seems to me that a mere 239 electors, not 270, would be &quot;a majority of the whole number of electors appointed&quot;; and the election would only go to the House of Representatives in case of a 238–238 tie; or if, instead of failing to appoint any electors, those states would instruct their electors to cast blank ballots or to vote for a third candidate.</p>
<p>Am I right, or what?</p>
<p>(By the way, I noce that the founders didn't provide for a four-way tie in the electoral vote, but that would be another question.)</p>

<p>The other answer is incorrect.  In fact, the question you're asking turns on the meaning of the phrase &quot;the whole number of electors appointed.&quot;  This could be interpreted either way, and as far as I know this ambiguity has never been considered by a court or by congress.  It would only matter under the following conditions:</p>
<ul>
<li>Some states appoint fewer electors than the number to which they are entitled.</li>
<li>The candidate with the greatest number of votes has more votes than half the number of electors actually appointed, but less than or equal to half the number of electors that should have been appointed.</li>
</ul>
<p>One way to look at this ambiguity is that it depends on how you parse the structure of the amendment.  It could be either:</p>
<ol>
<li>a majority of (the whole number of electors) (appointed)</li>
<li>a majority of the whole number of (electors appointed)</li>
</ol>
<p>In the first case, &quot;appoint&quot; refers to the sentence in Article 2 that specifies, determines, or &quot;appoints&quot; the number of electors.  This reading is supported, for example, by the first definition of appoint at <a href="https://www.merriam-webster.com/dictionary/appoint" rel="noreferrer">Merriam-Webster online</a>, which is <em>to fix or set officially,</em> as in &quot;to appoint a trial date.&quot;</p>
<p>However, if you look at Article 2, it says</p>
<blockquote>
<p>Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.</p>
</blockquote>
<p>Here, <em>appoint</em> is used in its second sense, to name officially.  This suggests that a failure by any state to appoint any elector to which it is entitled reduces &quot;the whole number of electors appointed&quot; because some available places in the Electoral College have not had anyone appointed to fill them.</p>
<p>I favor the second interpretation, but I suspect that if the conditions outlined above actually did arise, Congress would choose the politically expedient interpretation.  That is, if the candidate with the most votes was of the party in control of Congress, they would take the second interpretation, and if that candidate of the other party, they would take the first.  I further suspect that the courts would not get involved.</p>

<p><a href="https://constitution.congress.gov/browse/article-2/section-1/clause-3/" rel="nofollow noreferrer">Art I Sect. 1 Cl. 3 of The Constitution</a> says that</p>
<blockquote>
<p>the President of the Senate shall, in presence of the Senate and House
of Representatives, open all the certificates, and the votes shall
then be counted</p>
</blockquote>
<p>In 1876, the question arose as to who does the counting and whether votes can be rejected. There was substantial controversy surrounding the election, and a reasonable chance that votes from Florida, Louisiana, South Carolina and Oregon might be rejected by the president of the Senate. An alternative followed for some 10 years was that a vote objected to would not be counted unless both houses concurred. Since the matter could not be resolved, Congress created a commission to sort this out (composed of 5 each Representatives, Senators and SCOTUS justices), who made a decision as to the disposition of the 20 disputed electoral votes.</p>
<p>In lieu of such a resolution, a contingent election can arise when Congress rejects electoral votes – which it can do. <a href="https://www.law.cornell.edu/uscode/text/3/15" rel="nofollow noreferrer">3 USC 15</a> statutorily manages the question of counting and objections – this law is a masterpiece of confusion (<a href="http://www.floridalawreview.com/wp-content/uploads/2010/01/Siegel-BOOK.pdf" rel="nofollow noreferrer">this book-length article</a> strives to explain the law, the Electoral Count Act of 1887). Disputes over electors fall into 4 categories, according to that article:</p>
<blockquote>
<ol>
<li>whether  the  electoral  votes  come  from  individuals entitled
to hold the office of presidential and vice-presidential elector; 2)
whether the individuals entitled to the office of elector have
properly performed their duties; 3) the consequences of rejecting an
electoral vote on the number  of  votes  required  to  elect  a
President  or  Vice-President; and 4)  the  procedures  of  the  joint
meeting  that  counts  the electoral vote.</li>
</ol>
</blockquote>
<p>One way in which a contingent election can come about is if a sufficient number of electoral votes are rejected by Congress. When 538 electors are appointed by the states, the winner must receive 270 votes, regardless of the number of votes that are rejected by Congress. It is possible that no candidate will have that number of votes, if enough votes are rejected by Congress. It is <em>unlikely</em> since Congress has not rejected electoral votes since Reconstruction and has not even voted on the matter except 2000 (a challenge to Ohio's vote, voted down).</p>
<p>There is no ambiguity in the meaning of &quot;appoint&quot;. If the laws of a particular state are unclear enough that there could be competing lists of electors (one &quot;appointed&quot; by the governor and the other &quot;appointed&quot; by the secretary of state), there would be a controversy as to which one has in fact been appointed. 3 USC 6 specifies that the executive of each state shall &quot;communicate by registered mail under the seal of the State&quot; to the Archivist, but it is up to the states to specify the procedure for filling in the paperwork.</p>
