Contingent elections: what they are, and what to expect if 2024 triggers one

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2024 could rival 1968’s political tumult: Chad Pergram

Fox News senior congressional correspondent Chad Pergram reports on the political violence marking both election years ahead of the 2024 Democratic National Convention.

The pundits predict the presidential election will be close. So should people prepare for contingencies?

There’s truly only one contingency for this scenario. It’s called a contingent election.

What’s that?

Don’t feel badly if you’ve never heard of a contingent election. The term is not even mentioned in the Constitution. However, Article II, Section 3 of the Constitution and the 12th Amendment address the process for settling a dispute in the Electoral College where no candidate scores the magic number of 270 electoral votes. Or, if there’s a tie.

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The U.S. has only undergone a contingent election on three occasions: 1801, to elect President Thomas Jefferson. Then in 1825 to pick President John Quincy Adams. Finally in 1837 to elect Vice President Richard Mentor Johnson.

In a contingent election, the House selects the President. The Senate picks the Vice President.

But let’s first explore scenarios for a complicated Electoral College tabulation – which could trigger a contingent election.

Here's what to expect if this year's Trump-Harris showdown ends with no candidate receiving 270 Electoral College votes. (AP/Jacquelyn Martin/Nell Redmond)

The possibility of a 269-269 Electoral College tie is real. Let’s say Vice President Harris loses Pennsylvania and Georgia. But she prevails in Nevada, Arizona, Michigan and Wisconsin. Harris also collects a singular electoral vote in Nebraska’s 2nd Congressional district. Maine and Nebraska distribute their electoral votes based on which presidential candidate prevails in each Congressional district. For instance, in 2020, Rep. Don Bacon, R-Neb., won - even as President Biden carried the district. In Maine’s 2nd Congressional district, Rep. Jared Golden, D-Maine, won. Yet former President Trump bested Mr. Biden in that district. Nebraska has five electoral votes. Mr. Trump received four. President Biden, one. Maine has four electoral votes. The President earned three. But former President Trump collected one.

There are other scenarios to get you to an Electoral College tie.

Fast-forward to January 6th, the day the House and Senate meet in a Joint Session of Congress to certify the Electoral College. We know what happened in 2021 with Republicans contesting slates of electoral votes from six states. If Congress fails to certify a winner, or, if there are disputes on various batches of electoral votes, it’s possible no candidate hits 270.

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So, it’s then up to the House of Representatives to select the President and the Senate, the Vice President, in a contingent election.

Here’s the fascinating part.

Each state votes as a state delegation – but receives only one vote in a contingent election. In other words, California, with its 52-member delegation comprised of 40 Democrats, counts the same as South Dakota, with its lone Republican.

In a contingent election, Republican Rep. Dusty Johnson – South Dakota's sole congressman – would have as much voting power as California's entire 52-member delegation. (Kevin Dietsch/Getty Images)

But we don’t truly know the breakdowns of each Congressional delegation for next year which could vote in a contingent election. We only know the breakdown for this Congress. The new Congress isn’t sworn-in until January 3, 2025.

So here’s an analysis on where each state delegation stands now, and where they could stand come January.

As of this moment, Republicans control 26 state delegations – ranging from all Republican West Virginia to mostly Republican Florida and Texas. Democrats rule in 22 state delegations. That includes mostly Democratic New York and all Democratic Massachusetts and Connecticut. Two states are tied: Minnesota features a 4/4 split between the parties. North Carolina is divided 7/7.

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But what does the House look like next year? Things would still favor the GOP – even if Democrats win control of the House with the most seats. And evaluating the map, the odds favor Republicans to control the most state delegations. But nothing is a done deal.

So let’s study state delegations which have a chance of flipping one way or the other in 2025 – and how that could sway a contingent election.

Alaska is a fascinating place to start. Rep. Mary Peltola, D-Alaska, won this statewide seat in a special election in 2022 after the death of late Rep. Don Young, R-Alaska. Young represented the state for 49 years. Peltola is up against Republican Nick Begich Jr., grandson of late Rep. Nick Begich, Sr., D-Alaska. Ironically, Young took the seat after the elder Begich died in a plane crash. Also on the ballot: John Wayne Howe and Eric Hafner.

Should Democrats find themselves facing a contingent election, securing the vote of Alaska Rep. Mary Peltola is an absolute must. (AP Photo/Mark Thiessen, File)

If Democrats are to hold the House for a potential contingent election, they need Peltola to win. Former President Trump won Alaska in 2020 with 61 percent of the vote.

Where could Democrats flip a Congressional delegation in their favor? Arizona is a case study as to why it’s hard for Democrats to gain traction in state delegations.

Arizona is a swing state at the presidential level. But there are two Republicans at risk. Rep. Dave Schweikert, R-Ariz., narrowly won two years ago. Freshman Rep. Juan Ciscomani, R-Ariz., also represents a battleground district. But Republicans currently hold a 6-3 advantage over Democrats in the House delegation. Democrats have an outside shot at moving the delegation to 5-4 in their favor should they knock off two incumbents. But that’s dicey.

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Colorado’s House districts currently favor the Democrats, 5-3. But in order to maintain that advantage and avoid a 4-4 tie, freshman Rep. Yadira Caraveo, D-Colo., must win re-election. Caraveo won her first term with less than 50 percent of the vote in 2022.

As mentioned, Maine awards its electoral vote proportionately. Golden is one of the most moderate Democrats in the House, routinely winning close races. But Maine only has two House seats. Rep. Chellie Pingree, D-Maine, holds the other one. Pingree is favored to win this fall. However, if Golden loses, Maine’s delegation is tied. How that delegation votes in a contingent election is anybody’s guess. A tie essentially nullifies that state’s vote in a contingent election on the House floor.

In the contingent election of 1801, the House delegations of Vermont and Maryland were split evenly. The House then consumed 36 ballots before electing Thomas Jefferson. One of the reasons Jefferson became president is that Maryland’s House delegation eventually dropped its deadlock. Maryland had voted 4-4 for days. But Jefferson prevailed after four of Maryland’s House members didn’t vote on the 36th ballot.

A loss by Democratic Rep. Susie Lee could split Nevada's four-member delegation in half. Should her challenger, Drew Johnson, win, he would join fellow Republican Mark Amodei and Democratic colleagues Dina Titus and Steven Horsford in the Silver State's congressional ranks. (Bill Clark/CQ-Roll Call, Inc via Getty Images)

It’s also worth keeping an eye on Nevada. Nevada is a key state at the presidential level. Democrats hold a 3-1 House advantage. A loss by Rep. Susie Lee, D-Nev., could tie that delegation, 2-2, taking away the Democrats’ advantage.

Minnesota is another state with a 4-4 tie in its delegation. Probably the best chance for Democrats here is to hold the tie and nullify the Gopher State’s vote in a contingent election. Rep. Angie Craig, D-Minn., historically wins with slim margins. A loss by Craig flips the Minnesota delegation to 5-3 in favor of Republicans.

Now, buckle in. North Carolina is where things get intriguing.

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The Tar Heel State features 14 House members, split evenly 7-7 among Democrats and Republicans. But thanks to redistricting, Republicans likely gain in the House delegation next year. North Carolina could favor the GOP 10-4 or maybe even 11-3. So the state could be a boon to Republicans if the House decides the presidency in a contingent election.

But here’s the rub:

North Carolina is now in play at the presidential level. What happens if Harris wins all 16 of North Carolina’s electoral votes - but there is still a contingent election in the House because no candidate reached 270? Does the North Carolina House delegation – now leaning heavily toward the GOP – ignore that fact in a contingent election on the House floor and vote for former President Trump? Or do those House members - mostly Republicans - cast their ballots for Harris because that expresses the will of the voters in their state?

North Carolina's redrawn congressional map, which effectively strongarmed Rep. Wiley Nickel and two other Democrats out of the House, is likely to dramatically alter the state's trajectory in a contingent election. (AP Photo/Manuel Balce Ceneta, File)

House members are not bound in any way, shape or form to reflect the outcome of the popular vote or Electoral College in their states. House members can vote however they want.

Consider Georgia. It's highly competitive at the presidential level. However, Republicans lead 9-5 in the House delegation. That delegation is not on the edge. Let’s say Harris wins Georgia. How does Georgia’s delegation vote in a contingent election?

Pennsylvania is a little like North Carolina. The Keystone State is up for grabs this fall. Democrats command a 9-8 advantage in its House delegation. However, that’s not a lock. Reps. Chris Deluzio, D-Penn., Susan Wild, D-Penn., and Matt Cartwright, D-Penn., all represent competitive districts. On the Republican side, Rep. Brian Fitzpatrick, R-Penn., has a district which has the potential to be in play.  Pennsylvania is challenging for Democrats to hold at the House level – regardless of what happens at the top of the ticket.

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The challenge for Democrats in Michigan is nearly a carbon copy of Pennsylvania. Michigan is a must-win state for both Harris and the former President. Democrats have a 7-6 edge in the House delegation. They are defending the seat of Rep. Elissa Slotkin, D-Mich., who is now running for Senate. Slotkin usually won her seat with a little more than 50 percent of the vote. But Democrats must also maintain the seats of retiring Rep. Dan Kildee, D-Mich., and Rep. Hillary Scholten, D-Mich. However, Democrats hope to flip the district currently held by Rep. John James, R-Mich. James narrowly won in 2022.

Virginia is the last state delegation which is truly in play in 2024. There is an outside chance Virginia’s 13 electoral votes could be up for grabs in the presidential election. But that is far from guaranteed. Democrats currently hold a 6-5 edge in the House delegation.

Rep. Abigail Spanberger, D-Va., is retiring to run for governor next year. Spanberger is a centrist Democrat who flipped one of the most-competitive districts in the nation in 2018. Democrats must hold her seat along with the district of retiring Rep. Jennifer Wexton, D-Va. Wexton is stepping down for health reasons. Wexton’s race was closer than expected in 2022. However, Democrats hope to pick up a seat won in 2022 by Rep. Jen Kiggans, R-Va., with 51 percent of the vote.

Absent a win in Republican Rep. Jen Kiggans' district, Democrats must retain the seat held by retiring Rep. Abigail Spanberger (pictured) to keep their hold on Virginia's congressional delegation. (AP Photo/Nathan Howard, File)

In short, House Democrats really don’t have a lot of chances to make inroads against Republicans with state delegations. It’s ironic because Democrats have a good chance of gaining control of the House. But Democrats run up their overall House numbers in Massachusetts and California. They’re not competitive in North Dakota, South Dakota and Utah. So, the GOP maintains those delegations.

When it comes to a contingent election, the best Democrats can do is hold current "battlegrounds," like Alaska, Michigan, Pennsylvania and Virginia and maintain a tie in Minnesota. They also need to avoid a tie in Nevada, Colorado and Maine. At this writing, there are zero chances for Democratic delegation pickups. It boils down to defending five close states at the delegation level, ducking ties in three states and keeping things where they are in Minnesota. Even so, Republicans likely seize the delegation in North Carolina.

If that analysis holds, Democrats may only control 22 delegations in January, 2025. That’s compared to 27 held by Republicans if North Carolina goes the way we anticipate.

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Even so, it’s possible Democrats could lose seats in presidential battlegrounds like Michigan and Pennsylvania. Or Peltola could lose in Alaska. It’s entirely plausible that Republicans could control close to 30 state delegations compared to Democrats hovering around 20.

That doesn’t bode well for Harris if the election for President is pitched into the House.

In the contingent election of 1825, the House ultimately elected President John Quincy Adams, the son of President John Adams, one of the vanquished candidates in the disputed 1800 election which ultimately went to Jefferson. Future President Andrew Jackson scored most of the electoral votes needed to win. But the House still sided with the younger Adams. So, it’s far from certain that a contingent election reflects the electoral vote.

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There’s no experience with this archaic exercise in the modern Congress. It’s a gambit unused for nearly two centuries. And because of that, no one knows how it will go.