The House of Representatives Electing the President — Ten Questions & Answers
1. When does the election of the President fall to the House of Representatives?
Under the 12th Amendment to the Constitution, if no candidate for President or Vice President receives a majority of electoral votes — currently 270 votes, the House of Representatives elects a President and the Senate elects a Vice-President. While it is possible for two candidates to tie with 269 votes each, it is more likely that no candidate reaches 270 electoral votes when there are three or more candidates.
2. When is it too late for an independent third-party candidate to get on the ballot?
The majority of state filing deadlines for an independent candidate are August 1st or later. Only 14 states have a deadline prior to August 1st and only five prior to July 1st.
It is estimated that getting on the ballot in every state would require the collection of approximately 900,000 signatures. However, the numbers vary greatly across the states from as few as 275 signatures in Tennessee to 178,000 in California. In 28 states it would require 5,000 or fewer signatures, including battleground states such as Ohio, Virginia, Colorado, and Iowa. A third-party candidate need not run in every state.
3. If the election of the next President falls to the House of Representatives, can they elect whomever they want?
No, under the 12th Amendment, the House chooses from the three candidates receiving the most votes. In electing the Vice-President, the Senate is restricted to the two candidates receiving the most votes. The House and Senate could elect candidates from different tickets.
4. Does it take a simple majority in the House to elect the President?
Not exactly. Under the 12th Amendment, the House would vote by state with each state receiving one vote and 26 votes required to elect a new President. Members from each state would first vote amongst themselves to decide how to cast their state’s vote.
5. So which party has the advantage in terms of state delegations?
The Members elected this November will be the ones electing the next President, but based on the current makeup of the House, Democrats would control the votes of 14 states. Republicans would control the votes of 33 states. The remaining three states are evenly split between the parties.
6. When would all of this take place?
While we should know on election night whether any candidate reached 270 electoral votes, by law the newly elected Congress will meet on January 6th to officially count the electoral ballots. Since no candidate has a majority, the House will then meet to elect a President and the Senate a Vice-President.
7. What happens if no candidate gets the votes of 26 states in the House?
If the House fails to elect a new President by noon on January 20th, then the person elected Vice-President by the Senate — simple majority vote of 51 Senators required, — will become acting President until the House shall elect the new President. If the Senate has failed to elect a Vice-President the order of succession will take over, beginning with the Speaker of the House.
8. Has the House ever elected the President?
Yes, twice after the elections of 1800 (before the 12th Amendment) and 1824 (after the 12th Amendment).
9. What are the chances that in a three-way race no candidate reaches 270 electoral votes; after all Ross Perot didn’t cause the 1992 election to go to the House?
It is impossible to say, but it is worth noting that in the last election there were eight states with 124 electoral votes were won with less than 52% of the popular vote.
10. Won’t House Members be under tremendous pressure to vote their party and state?
Maybe, but maybe not. In the two prior instances when the election fell to the House, the Members cast their votes into special ballot boxes so it was impossible to tell how individual Members voted or even how individual states voted. In 1825, the House specifically rejected an attempt to break this secrecy. It will be up to the House to vote on the rules they will use to elect the next President, including whether or not to continue the practice of secret ballots.