When the Electoral College doesn’t decide the winner of the presidential election
Nov. 3 has come and gone with the unofficial winner of the election for president being former Vice-President Joe Biden. This is being disputed by President Trump with the filing of a number of so far mostly unsuccessful lawsuits.
In the meantime, each state’s election officials have or are continuing to canvass and certify their results.
Canvassing is determining the validity of each ballot. Certification is the process by which the results of an election are made official.
Every state has its own certification filing deadline. When all the results are in, the members of the Electoral College from each state cast their ballots on Dec. 14 for their state’s winning candidate. When we voted for president, we were actually voting for these electors to conduct this additional election. There are 538 electoral voters, with Michigan having 16.
Under the 12th Amendment, the winning candidate must receive a majority of the electoral votes cast.
But what happens when no candidate receives a majority vote?
The answer is also found in the 12th Amendment, which provides that the House of Representatives will then choose the president by majority vote with each state having one vote.
Historically this has happened in three different presidential elections — 1800, 1824 and 1876.
In 1800, Thomas Jefferson and Aaron Burr received the same number of Electoral College votes. It took 36 votes for Jefferson to be declared president.
The 1824 election had four candidates: Secretary of State John Quincy Adams, House Speaker Henry Clay, Treasury Secretary William Crawford and Senator Andrew Jackson. Each failed to win a majority in the Electoral College.
In what has been called “The Corrupt Bargain” supporters of Clay voted for Adams in exchange for a promise to appoint Clay as Secretary of State. Adams won and then appointed Clay.
Finally, in 1876, there were two candidates, New York Governor Samuel Tilden and Ohio Governor Rutherford B. Hayes. Because of voter intimidation and fraud, even though Tilden won the popular vote, 20 electoral votes were questioned and he was one vote short of a majority. Ultimately the House voted for Hayes.
Although it appears that this year’s Electoral College vote will result in a winning candidate being declared, if it doesn’t, we know that our Constitution is there to provide the solution.