35 Pages Posted: 22 Apr 2009 Last revised: 1 Aug 2009
Date Written: April 21, 2009
For a brief time in September of 2008, the country appeared to be heading toward another electoral crisis. Polls showed Barack Obama and John McCain each holding leads in states representing 269 electoral votes, meaning that an election at that point would result in neither candidate winning the 270 majority of votes necessary for victory. This would require the House to pick a president by a majority vote of the states via the so-called "contingent procedure," once disparaged by Jefferson as "the most dangerous blot in our constitution." While Barack Obama’s decisive victory in the 2008 presidential election deflected such a result, the contingent procedure has been used to pick a president twice in our history, and both elections were accompanied by serious political turmoil. However, because these elections occurred nearly two centuries ago, there is little concern about the contingent procedure today. The contingent procedure thus presents a unique paradox in our law: it is seemingly irrelevant yet extremely dangerous. Its rare use causes it to be largely ignored by Congress and the public, while the potentially grave and destabilizing consequences of its use make its continued existence a serious liability.
This Comment argues that the contingent procedure is a deeply flawed mechanism for resolving contested presidential elections and proposes two means by which it may be retired. Part I discusses the contingent procedure’s origins and mechanics and demonstrates that the contingent procedure is obsolete. Part II explores the elections of 1800 and 1824 in order to note the perverse incentives for Congress and presidential candidates that the procedure’s use would create. Part III proposes the elimination of the contingent procedure by constitutional amendment and argues that the procedure should be replaced with an automatic "Popular Procedure" that would award the Presidency and Vice Presidency to the ticket winning a plurality of the national popular vote. While noting the advantages of such a solution, Part III also discusses its central flaw: the difficulty of building the political will to achieve it. Part IV thus proposes a compromise, “Bypass Procedure” that would involve amending state electoral-vote allocation laws such that in the event of an electoral tie, at least one state would allocate a tie-breaking electoral vote to the candidate winning the national popular vote. Following a discussion of the advantages and disadvantages of this approach, Part V concludes.
Suggested Citation: Suggested Citation
Fakhouri, Rami, The Most Dangerous Blot in Our Constitution: Retiring the Flawed Electoral College 'Contingent Procedure' (April 21, 2009). Northwestern University Law Review, Vol. 104, 2010. Available at SSRN: https://ssrn.com/abstract=1392919