Electoral College & Indecisive Elections
“…and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President…”
— U.S. Constitution, Article II, section 1, clause 3
Various methods for selecting the executive were offered, reviewed, and discarded during the Constitutional Convention: legislative; direct; gubernatorial; electoral; and lottery. A decision resulted only late in the Convention, when the Committee of Detail presented executive election by special electors selected by the state legislatures. This compromise preserved states’ rights, increased the independence of the executive branch, and avoided popular election. In this plan, Congress plays a formal role in the election of the President and Vice President. While Members of Congress are expressly forbidden from being electors, the Constitution requires the House and Senate to count the Electoral College’s ballots, and in the event of a tie, to select the President and Vice President, respectively.
The House Decides: 1801
The provisions for electing the President and Vice President have been among the most amended in the Constitution. Initially, electors voted for two individuals without differentiating between the ballot for President and Vice President. The winner of the largest bloc of votes, so long as it was a majority of all the votes cast, would win the presidency. The individual with the second largest number of votes would become Vice President. In 1796, this meant that John Adams became President and Thomas Jefferson became Vice President despite opposing each other for the presidency.
The 1800 presidential election further tested the presidential selection system when Jefferson and Aaron Burr, the Republican candidates for President and Vice President, tied at 73 electoral ballots each. The House, under the Constitution, then chose between Jefferson and Burr for President. The Constitution mandates that House Members vote as a state delegation and that the winner must obtain a simple majority of the states. The House deadlocked at eight states for Jefferson, six for Burr, and two tied. After six days of debate and 36 ballots, Jefferson won 10 state delegations in the House when the Burr supporters in the two tied states (Vermont and Maryland) filed blank ballots rather than support Jefferson.
The 12th Amendment
After the experiences of the 1796 and 1800 elections, Congress passed, and the states ratified, the 12th Amendment to the Constitution. Added in time for the 1804 election, the amendment stipulated that the electors would now cast two votes: one for President and the other for Vice President. While states varied in how they selected presidential electors through the 19th century, electors today are uniformly popularly elected (rather than appointed) and pledged to support a given candidate.
The House Decides Again: 1825
Since the 12th Amendment, one other presidential election has come to the House. In 1824, Andrew Jackson of Tennessee won a plurality of the national popular vote and 99 votes in the Electoral College—32 short of a majority. John Quincy Adams was runner-up with 85, and Treasury Secretary William Crawford had 41. Speaker of the House Henry Clay had 37 and expected to use his influence in the House to win election. But the 12th Amendment required the House to consider only the top-three vote-getters when no one commands an overall majority. The House chose Adams over Jackson. And when Adams made Clay Secretary of State, Jackson said the two had struck a corrupt bargain. “[T]he Judas of the West has closed the contract and will receive the thirty pieces of silver . . . Was there ever witnessed such a bare faced corruption in any country before?” Jackson said.
Congress Decides: 1877
The contested 1876 presidential election between Republican Rutherford B. Hayes of Ohio and Democrat Samuel J. Tilden of New York was the last to require congressional intervention. Tilden won the popular vote and the electoral count. But Republicans challenged the results in three Southern states, which submitted certificates of election for both candidates. While the Constitution requires the House and Senate to formally count the certificates of election in joint session, it is silent on what Congress should do to resolve disputes. In January 1877, Congress established the Federal Electoral Commission to investigate the disputed Electoral College ballots. The bipartisan commission, which included Representatives, Senators, and Supreme Court Justices, voted along party lines to award all the contested ballots to Hayes—securing the presidency for him by a single electoral vote. The Commission’s controversial results did not spark the violence in the post-Civil War South that some had feared largely because Republicans had struck a compromise with Southern Democrats to remove federal soldiers from the South and end Reconstruction in the event of a Hayes victory.
For Further Reading
Ackerman, Bruce. The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy. Cambridge, Mass: Harvard University Press, 2005.
Berns, Walter, ed. After the People Vote: A Guide to the Electoral College, revised and enlarged edition. Washington: AEI Press, 1992.
Ceaser, James. Presidential Selection. Princeton, NJ: Princeton University Press, 1979.
Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. New Haven and London: Yale University Press, 1937.
Holt, Michael F. By One Vote: The Disputed Presidential Election of 1876. Lawrence, Kan: University of Kansas Press, 2008.
Madison, James, Alexander Hamilton, John Jay. The Federalist Papers. New York: Penguin Books, 1987.
Polakoff, Keith Ian. The Politics of Inertia: The Election of 1876 and the End of Reconstruction. Baton Rouge: Louisiana State University Press, 1973.
Rawle, William. A View of the Constitution of the United States of America. 2d ed. Philadelphia, 1829. Reprint. New York: Da Capo Press, 1970.
Jared Sparks, ed. The Life of Gouverneur Morris, with Selections from His Correspondence and Miscellaneous Papers. 3 vols. Boston, 1832.