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If no candidates get a majority in the U.S. electoral college, are the President and Vice President chosen by the incumbent Congress or the ones just elected?

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The newly elected Congress does all of the work in electing a new President.

Under the 20th Amendment, the newly elected Congress takes office on January 3. Then three days later, on January 6, 3 USC § 15: Counting electoral votes in Congress, requires the new Congress to meet in Joint Session to count the electoral votes.

If this session does not produce a President or Vice President, there is what is called a contingent election. In a contingent election the House begins immediately to choose a President from among the top three electoral college vote getters, while the Senate chooses a Vice President from among the top two electoral college vote getters. Both Houses use majority rule. The House votes by state, so a majority is 26, while the Senators vote individually, so a majority is 51.

If the House does not pick a President by Inauguration Day, January 20th, the Vice President serves until a President is picked. If neither a President nor a VP has been picked by the 20th, the Presidential Succession Act applies, and the Speaker of the House, President pro tempore or a cabinet officer serves as Acting President.

It wasn't always done this way:

The 20th Amendment was passed in 1933 to take control over elections away from the lame duck Congress. Before the 20th A was adopted, the terms for P, VP and Congress all ended on Inauguration day, March 4. That meant the lame duck Congress had to deal with electoral matters. By giving Congress and the P/VP different expiration dates, the Amendment meant new Congress could deal with the election. Setting the election counting date after the new Congress was seated (on January 6), meant only the new Congress could.

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    Interesting tidbit: if the new Senate tied, the “old” (current) VP still breaks the tie. – Damila Jul 30 at 6:05
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    Actually it is not clear if the VP would get to break the tie. The 12th says a majority if the Senators so maybe with a tie they have to see if they can come up with a deal. I wonder if that has ever been discussed. VP clearly breaks other ties (Article 1) but the wording there makes it reasonably clear he is not a Senator. – Damila Jul 30 at 6:13
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    @Damila I think you are right. Article I says the VP "shall have no Vote, unless they be equally divided." But as you point out, the 12th says "a majority of the whole number shall be necessary to a choice," which means a tie means no "choice." – Just a guy Jul 30 at 6:35
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    It would be wild. EC ties, or some state can’t get their votes in or something (unlikely, but this is 2020!) Senate is 50-50 (possible). Does Pence get to vote for himself? This after Harris/Duckworth/Warren/? voted for herself. As a Senator can one of the latter object (probably someone else would anyway). And you thought 2000 would be taught in Election Law electives in law school for years to come. :) – Damila Jul 30 at 14:51
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    @WGroleau I understand your general point, but your assumption of the result is not correct. Current House by state by party is 26-23-1 for the GOP. House selection of POTUS is not one Rep-one vote, it is by state, one state-one vote. One would have to look closely to see if there are any delegations that are close enough that if one or two GOP reps voted for Biden instead it could flip. – Damila Jul 30 at 16:31

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