I never considered a scenario along the lines of 266-264-4-4 or 238-100-100-100, I agree that all 4 being considered is the logical answer, the alternative being weird and lame.
I was entirely unsure on the question of a whether a plurality or majority of House delegation is needed to cast it’s vote. There were abstentions when Jefferson was elected but abstaining may be different that voting for a third candidate. You are of the mind the House can stipulate the rules for this situation?
I was gonna ask you about VPs being able to break ties in contingent election or not. I agree that since the VP is a “Senator” that the answer is no.
This came up in fiction recently. A couple years ago on HBO’s “Veep” the election ended in a 269/269 tie between incumbent President Selina Meyer (D) and her GOP Opponent, she wins the popular vote but then loses it after a recount she pushes for in Nevada increases rather than overturns the Republican’s lead there (LOL).
There’s some less than realistic wheeling and dealing to insert doubt into what the House would do. Meyer’s running mate Tom James actively encourages a deadlock, wanting the White House for himself (the fact that new VP would only be acting President and that House could choose to vote again at any time, including after the midterms potentially changes it’s composition, is ignored). A deadlock appears certain, Meyer begs James to make her his SOS and he snidely offers her VP, a job she had and hated. (she was the titular “Veep” before ascending on the President’s resignation). The Republican is stuck at 25 votes, Meyer 22, 3 deadlocked. Meyer orders her toady, a Congressman from NH to vote for the Republican, giving him the 26th vote, so at least she can run against him in 4 years. But the toady doesn’t get the message and votes for her. The House Speaker proclaims that they will not vote again.
But Tom James is hoist by his own petard when the tied Senate vote is broken by the incumbent (D) VP in favor of the Republican VP candidate, New Mexico Senator Laura Montez (apparently a Gringa married to a Hispanic man, she rolls the R in her given name so I guess she’s like Beto O’Rourke ) in exchange he’s to be made her Sec of State, a true “corrupt bargain”.
I recall during the “John Adams” miniseries when they got to the 1800 election, someone suggested that maybe it would be a good idea for the outgoing Federalist House deciding the election to deliberately fail to elect, to keep the Presidency in Federalist hands. I have no idea if that was actually a consideration in real life. That would have prompted an early Constitutialn crisis with regards to whether or not a President Pro Tem or House Speaker were eligible to be Acting President.
I never knew this but I was looking at wikisource of the first Presidential succession act but it provided for a special election in the result of a vacancy of both Pres and Vice Pres.
Section 10. Was that constitutional?
You had a typo (you meant that the VP is * not* a Senator.
The pre-12th-Amendment system for electing the president and VP sucked, with one of many problems being that if two candidates tied for first place in the Electoral College (with each receiving votes from a majority of electors—remember, each elector got two votes), the House would elect the president and the loser of the vote would become the VP, without the Senate getting a say. Had the lame-duck Federalist House in 1801 refused to elect either Jefferson or Burr so that the Federalist President pro tempore of the Senate got to act as president of the U.S., it would have resulted in a lawsuit claiming that the Succession Act of 1791 was unconstitutional because it placed persons other than Executive Branch officers in the line of succession (an argument that James Madison had made on the floor of the House back in 1791, but the Federalist majority had ignored him). The House rules also provided that no business could be carried out until the House had counted the electoral votes that elected a president or, if the Electoral College failed to elect, until the House elected a president. There really wasn’t much to be gained by Federalists to refuse to exercise their duty to elect a president.
The 12th Amendment does not say whether, in a contingent presidential election, the vote of a majority of the members of a state’s House delegation for a particular candidate is required, or if a plurality vote of the members of the delegation would be permitted. When the Constitution is silent (in text or structure), the rules of each house may fill in the gaps. I believe that in 1824 the House rules required a majority vote by a state delegation in order for the delegation’s vote to go to a candidate, but, if there was a contigent election today with three or four candidates and there a deadlock after several ballots, I think that we might see the House change its rules to permit a plurality vote from a state’s delegation to be sufficient; however, one thing that the House could not change is the requirement that it would take the vote of 26 state delegations to elect a president.
As for the provision of the first Succession Act calling for a new election, I think that it was unconstitutional. Article Ii of the Constitution provides that the presidential term is 4 years, that the VP replaces the president in case of his death, removal or incapacity, and that Congress shall determine by law which officer shall act a president in cases of vacancies in both offices or of incapacity of the sole president or VP in office. Article II does not empower Congress to call a new election, only to legislate for the officer to act a president in the cases described above, and the fact that Article II begins by saying that presidents are elected to four-year terms is a clear indication that tge Framers did not contemplate special elections for short periods.