by Mitch Kokai
Senior Political Analyst, John Locke Foundation
In the event that neither President Donald Trump nor Joe Biden wins an absolute majority of votes in the Electoral College this November, the race will be handled with a constitutional procedure called a contingent election, which will send the contest to the House of Representatives for a final decision.
The process for a contingent election was initially established in Article II of the Constitution and later modified by the Twelfth Amendment. As it stands, the Constitution requires the House of Representatives to go into session to settle the election if neither candidate has attained a majority. Under this procedure, the House then must choose among the three presidential candidates who received the most electoral votes.
What’s most important to note is that in a contingent election, the House doesn’t cast its votes in the same way that it would decide on legislation. Instead, each state delegation must cast its vote en bloc, with each state receiving just a single vote, allotted to the candidate who receives majority support in the delegation. In order to be elected, then, a candidate must receive an absolute majority of state-delegation votes, which, given the 50 U.S. states, means he must receive the votes of 26 state delegations. (Despite having a delegate and three votes in the Electoral College, the District of Columbia does not get a vote.)
This is where things get really interesting: Although the Democratic Party currently holds a majority in the House, with 232 representatives to the Republican Party’s 198, the Republicans hold a majority of state delegations. In the current makeup of the House, there is a Republican majority in the delegations from 27 states. Of course, the composition of those delegations is subject to change in the coming election. …