The fact is we have come to a point where candidates running in just a few districts, none of whom are household names, could end up determining the presidency.
There is a great deal at stake in the 2024 presidential election, and many reasons this cycle is unique in American history. Our politics have become so divided that a handful of voters in a small number of swing states may decide control of both the House and the Senate, and the outcome of the presidential electors tally.
In the low probability but high impact case of an electoral college tie, or if one or several states refuse to certify a winner and thus deny any candidate enough electoral votes, several key House races could prove critical to the balance of political power in Washington, D.C., and the future of our politics.
The Constitution stipulates that if no candidate wins a majority (270) of Electoral College votes, the determination of the president goes to the House of Representatives and the determination of the vice president to the Senate, in a procedure known as a “contingent election.”
Under the 12th Amendment, the House would choose among the three candidates who received the most electoral votes and cast their ballots not as individual members, but rather, as state delegations. To win, a candidate would need the support of a majority (26) of the state delegations. If no candidate receives a majority, the vice president will act as president.
Meanwhile, the Senate would select the vice president from among the two candidates who received the most electoral votes. Unlike in the House, each senator casts a vote and a simple majority (51) is needed to win, with the vice president breaking a tie.
Given the timing, that means newly elected members of Congress and the current vice president would vote in a contingent election. Assuming everyone votes with their party, Kamala Harris would be elected vice president if Democrats lose a maximum of one Senate seat (with Harris breaking a tie). The Republican nominee would be elected if Republicans picked up more than one seat.
If the House fails to select a president by Jan. 20, the 20th Amendment states that the acting president (ie; the vice president-elect) serve in that role until the stalemate is resolved. That could amount to two years until the next House elections take place, or longer if the 2026 midterm elections do not solve the impasse.
In the case that neither the president nor the vice president is chosen by Jan. 20, the Presidential Succession Act requires the next in line (Speaker of the House, president pro-tempore, etc.) to serve as president until the deadlock is resolved.
Forecast results of the 2024 elections favor Republicans with a better chance to hold a majority of state delegations in the House. Most prognosticators think it is unlikely that Democrats will achieve a majority. Were Democrats to win just eight competitive districts, however, we could find ourselves in a no-state-majority scenario in the House.
The crucial eight districts to watch in this regard include five that are now too close to call, two that lean Democratic and one that leans Republican: Alaska At-Large (toss-up); Arizona’s 1st and 6th (toss-ups); Minnesota’s 2nd (leans D); Montana’s 1st (leans R); Pennsylvania’s 17th (leans D), 7th and 8th (toss-up).
In a normal election year, none of these eight races would garner much national attention. However, given how closely divided our politics is today, and the fact that the race for the presidency is a toss-up, under certain conditions these eight districts could prove decisive.
When it comes to choosing the president, we can no longer focus solely on the six or seven swing states and their independent-minded voters who might sway the election one way or the other.
Arguably for the first time in modern history, we need to pay close attention to what is happening in districts like Minnesota’s 2nd, where Angie Craig (D) will face a soon-to-be-determined GOP challenger, and Arizona’s 1st, where incumbent David Schweikert (R) will face a Democrat in a race that could go either way.
The fact is we have come to a point where candidates running in just a few districts, none of whom are household names, could end up determining the presidency.
While this nation has never seen a double-tie, 200 years ago, it did experience a single-tie. That occurred in the election of 1824; when no candidate received a majority of electoral votes and the election was thrown into the House. Even though Andrew Jackson won more votes (both popular and electoral), the House chose his main opponent, John Quincy Adams.
The public was outraged, and Jackson decried the outcome as a “corrupt bargain.” As his populist movement grew, Jackson campaigned successfully on this grievance and won the subsequent election by an overwhelming majority.
Two hundred years ago, the election of 1824 was extremely divisive. Given how much more polarized our politics are today, and how little public knowledge exists about these rules, a constitutional crisis caused by either a single- or double-tie scenario could prove even more chaotic and perilous to our democracy. That crisis could be exacerbated if one or both chambers of Congress experience delay tactics in implementation of these rules.
In 1823, Thomas Jefferson described contingent elections as the “most dangerous blot in our Constitution and one which some unlucky chance will someday hit.” We hope that day remains a long way off, but it is past time to take seriously this threat to the future health of our democracy.
We can start with a serious effort to unwind incentives to division built into our political system, beginning with partisan primary elections that reward extreme partisanship and punish consensus-building and cooperation among elected officials.
As we approach America’s 250th anniversary, we must rededicate ourselves to reforming the way we run our elections and choose our leaders, keeping faith with future generations of Americans and ensuring that our democracy survives another quarter millennium.
Glenn Nye is a former member of Congress and president of the Center for the Study of the Presidency and Congress. Jeanne Sheehan Zaino, Ph.D. is a professor of political science and international studies at Iona University, a political contributor with Bloomberg News and a senior democracy fellow with the Center for the Study of the Presidency & Congress.
