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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, "if nobody gets to 270", then the House of Representatives elects the president (and the Senate elects the vice-president).

Is that correct?

I am not a lawyer, but I read the plain language of the 12th amendment (emphasis added):

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; 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.

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 "a majority of the whole number of electors appointed"; 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.

Am I right, or what?

(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.)

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  • The founders did provide for a four-way tie, or even a three-way tie, or a three-way race in which the vote totals are close enough that nobody has a majority. "Majority" means "more than half," so where there are 538 electors appointed, the 12th amendment requires 270 votes regardless of how many candidates there are. If the person with the greatest number of votes has 269 votes, that person does not win the vote regardless. There might be one other candidate (and some electors failed to vote), or two getting 134 and 135, or 269 who got one vote each, or anything in between. – phoog Dec 10 '20 at 17:59
  • @phoog How would "not exceeding three" be applied in the event of a 4-way tie? How would they decide which three candidates are voted on in the House? By drawing names from a hat? – bof Dec 10 '20 at 23:59
  • @bof oh I see. I suppose that if there were a tie for third place they would include all of the people with that number of votes, but it's true that the language of the provision does not cover that possibility, and that including all of the people tied for third would in fact exceed three. Still it seems the fairest thing to do. – phoog Dec 11 '20 at 3:46
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The other answer is incorrect. In fact, the question you're asking turns on the meaning of the phrase "the whole number of electors appointed." 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:

  • Some states appoint fewer electors than the number to which they are entitled.
  • 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.

One way to look at this ambiguity is that it depends on how you parse the structure of the amendment. It could be either:

  1. a majority of (the whole number of electors) (appointed)
  2. a majority of the whole number of (electors appointed)

In the first case, "appoint" refers to the sentence in Article 2 that specifies, determines, or "appoints" the number of electors. This reading is supported, for example, by the first definition of appoint at Merriam-Webster online, which is to fix or set officially, as in "to appoint a trial date."

However, if you look at Article 2, it says

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.

Here, appoint 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 "the whole number of electors appointed" because some available places in the Electoral College have not had anyone appointed to fill them.

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.

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  • "I favor the second interpretation" Down voted. Your opinion of the interpretation disqualifies this as a legit answer in this forum. – hszmv Dec 10 '20 at 18:29
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    @hszmv there is nothing wrong with expressing opinion about an unsettled question of law. For what it's worth, Wikipedia (currently) agrees with this answer: en.wikipedia.org/wiki/Electoral_Count_Act#Pre-enactment_history – phoog Dec 10 '20 at 18:30
  • Congress would choose according to what rules? 1 congressman = 1 vote, or 1 delegation = 1 vote? When the certification takes place, I believe 1 delegation = 1 vote. – bobcat Dec 10 '20 at 18:43
  • @MaxB: Under the Electoral Act of 1877 it's 1 vote per state delegation. – hszmv Dec 10 '20 at 18:49
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    @hszmv the states are already denied equal representation in the electoral college, by explicit design of the constitution. It's not that the four aren't allowed to have electors, it's that they failed to use their opportunity to appoint electors. If they haven't appointed their electors, then it's not accurate to say "they still have their electors, but failed to use them": rather, they have seats in the electoral college, but failed to appoint anyone to fill them. – phoog Dec 10 '20 at 19:13
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Art I Sect. 1 Cl. 3 of The Constitution says that

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

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.

In lieu of such a resolution, a contingent election can arise when Congress rejects electoral votes – which it can do. 3 USC 15 statutorily manages the question of counting and objections – this law is a masterpiece of confusion (this book-length article strives to explain the law, the Electoral Count Act of 1887). Disputes over electors fall into 4 categories, according to that article:

  1. 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.

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 unlikely 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).

There is no ambiguity in the meaning of "appoint". If the laws of a particular state are unclear enough that there could be competing lists of electors (one "appointed" by the governor and the other "appointed" 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 "communicate by registered mail under the seal of the State" to the Archivist, but it is up to the states to specify the procedure for filling in the paperwork.

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The rules of the electoral college state that the President must be chosen by a majority (read as a simple majority) of the total number of available electors in a Presidential election. It stipulates conditions for what to do in the event no single person holds a majority (thus implying that all electors includes the electors that were up for grabs but did not vote for either runner... The founders had conceived this because they expected faithless electors). Should your four states not submit any electors, then they essentially do not vote, but they still count for securing the majority, meaning 270 is still the number to beat (Article II).

Should this happen, it automatically triggers a contingent election in the House and the Senate, with the House picking the President and the Senate picking the Vice President. The House pick is unusual in that under current law, the House selects the President with one vote per state delegation (rather than one vote per representative) with each state's total representatives meeting and voting on which candidate gets that state's vote. So the majority control of the house is not a bellweather for who the president is. In 2021 (when this vote happens) the House will be Democrat majority, but of the state delegations Republicans have the majority (More State Delegations are 51% or more Republican than are not).

In the Senate, because the states are equally represented, the Vice President is picked by simple majority vote.

A Quorum of 2/3rds of the senate and 2/3rds of the states by any number of it's representatives must be in the vote (so if the Democrats tried to walk out of the House, the vote still proceeds... if a state is 7 dems to one republican, and all 7 walk out, the Republican may still cast a vote for his/her state so the quorum is unaffected. Right now there are only about 5 states that are solidly one party in it's delegation.).

A contingent election can also be triggered by one member of the House and one member of the Senate challenging any number of states' electoral votes, at which point there is a 2 hour debate followed by a vote to remove any state's electoral submission that has been so challenged. IF they remove enough that no candidate has 270, then the contingent election rules apply.

These two rules are governed under the Electoral Act of 1877, which was brought into law following the troubled election in 1876. Because no election since has been this close to a challenge, the Act has yet to be invoked and there is some legal debate if the act is binding only on the Congress that passed it or if it's binding law on subsequent congresses. If the latter, than the contingent election rules may not apply and this explanation may be tossed out.

Just a quick general timeline.

First Tuesday after the First Monday in November: General Elections. States who select electors based on popular vote (all of them) vote on this day.

November-early December: Votes are tallied, the results certified, and the Electors selected. Election Contestations may be filed once the results are certified in those states which allow it.

December 6 days before the Electoral College meets to vote: Safe Harbor - All states that have resolved their election contests and certified their elections are garenteed to be counted by the Electoral College. Those that have not can still resolve by the EC Meeting date, but are not garenteed to be admitted (The EC can choose to admit them or choose to exclude them).

Early December: EC meets to vote. All votes are tallied and sealed in an envelop and transmitted to the chief archivist of the United States.

December-January: Generally the Christmas Holiday season. Congress takes a break while support staff remove the furniture from offices of ousted congressmen/women and bring in the new guy's stuff.

January 2nd: The new congress meets and begins parliamentary proceedures (picking leadership positions and other matters).

Early January (Few days after new congress meets): Archivist transmits the envelop to the Incumbent Vice President of the United States, who reads the results in a joint session. Any challenges from Congress are resolved and a failure for any candidate to capture a majority of the vote will result in a contingent election, which immediately happens. Either way, by days end, the President elect is declared.

Jan 20th: The President-Elect becomes the President at 1200 EST. If this date falls on a Sunday, this still happens but the festivites in D.C. (including a public swearing in ceremony) take place on the 21st (tradition, not law, so as not to disrupt the Sabbath. Assumption of office can take place rather quickly so the nation does not have a sucession crisis.).

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Dec 11 '20 at 3:14

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