Some additional clarification, as this subject is a bit more complicated than the way that Impy and DJ described it (although their examples are correct).
If no presidential candidate receives a majority of electoral votes (currently 270), the 12th Amendment provides that the House gets to elect the president, choosing “from the persons having the highest numbers not exceeding three on the list of those voted for as President.” There are two ways to read this: As stating that the House may not consider more than three candidates, or that the House may not consider more candidates than those with the third highest number of elections. I’ve thought about this for over 20 years now, and my conclusion is that the most logical reading would be that if, say, Trump has 266 EVs, Hillary has 264 EVs, McMullin has 4 EVs and Stein has 4 EVs, that the House could elect any one of those four (because they are the persons that received the top three “numbers” on the list). So, if I’m correct, the House wouldn’t be limited to three persons if there’s a tie for third; furthermore, if the first-place finisher got 238 EVs and there’s a three-way tie for second with 100 EVs each, the House could choose from among four candidates instead of being limited to just one choice.
A crucial point is that, when the House votes to elect the president of the United States, the vote is held by state delegation, not individually. So if California’s 55 Representatives cast 30 votes for Hillary, 20 votes for Trump, 3 votes for Stein and 2 votes for McMullin, Hillary would receive 1 vote in the contingent election; meanwhile, if Alaska’s sole Representative cast his vote for Trump, Trump would receive 1 vote in the contingent election.
Moreover, if no candidate gets a plurality (or, if the House votes to require a majority, a majority) of a state’s delegation, no vote would be cast by such delegation. So if New Mexico’s Representatives cast one vote for Trump, one for Hillary and one for Stein, no one would receive the vote of the NM delegation. Since *a majority* of delegations are required for the House to elect a president, these ties increase the probability that none of the candidates would be elected president in the first round of voting.
If no one receives the vote of 26 state delegations, a second vote would need to be held, with Representatives being able to change their votes, until someone is elected president. (If no one is elected president by January 20, the new VP would be sworn in as Acting President and serve in such capacity until the House finally elects a president; as Acting President, the VP can make all sorts of appointments and sign or veto bills, but would *not* be entitled to nominate a new VP under the 25th Amendment, for the simple reason that *there is no vacancy in the vice presidency* (he is the VP, and merely is acting as president until the House elects one).
Which may lead you to ask, how did the VP get elected? If no candidate received 270 VP EVs, the 12th Amendment provides that the Senate, by a vote of “a majority of the whole number” of Senators (i.e., 51 Senators, with the lame-duck VP *not* being able to break a tie), would elect the VP “from the two highest numbers on the list.” The language here differs from that used in the case of contingent elections in the House, so there’s no danger of someone claiming that if VP candidate X got 180 EVs and VP candidates Y and Z each got 179 EVs that the Senate only could elect X. However, there’s a different potential problem with this phrasing: Wooden literalism might lead someone to argue that if X and Y each got 268 EVs and Z got 2 EVs that the Senate could consider Z because 2 is the “second highest number” (with 268 being the highest). However, I would hope that judges wouldn’t be so mathematically clueless as to fail to realize that the two highest numbers in such case are 268 and 268.
As for what happens if the House fails to elect a president *and* the Senate fails to elect a VP, that would take a much longer post to explain. Cliff’s Notes version: Both the new Speaker and the holdover Secretary of State would claim to become Acting President on January 20, and we’d be in the midst of a genuine constitutional crisis. If you’re interested in this issue, as well as other potential constitutional crises, I highly recommend “Constitutional Cliffhangers” by Brian C. Kalt: https://www.barnesandnoble.com/w/constitutional-cliffhangers-brian-c-kalt/1102887882?ean=9780300234305
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?