# Clarifying the Possibility of a Contingent Election under the Twelfth Amendment 

These have been broadly correct in most details, but one common claim reflects a confusion worth clarifying.

October 21, 2024 • News Releases 

**As we get** closer to the election, a number of [articles](https://usw2.nyl.as/t1/265/dzzg12d6dwisgnkyim43pympr/0/87e471d78f62656dc8055dd013fdf48b8a86a0e2aa0e4a0e187de57a4095efd1) have [been](https://usw2.nyl.as/t1/265/dzzg12d6dwisgnkyim43pympr/1/d2960216d2259befb517e9af38204a5e8c97ac94b5af43bccdd91159d6306cf3) published [offering](https://usw2.nyl.as/t1/265/dzzg12d6dwisgnkyim43pympr/2/f93adb94c807b01dcb8a249e71fbf7d311a60ac1506e6adc30f6b64dd499e9e1) legal explainers for how the process under the new Electoral Count Reform Act of 2022 would work. These have been broadly correct in most details, but one common claim reflects a confusion worth clarifying. Specifically, the conditions under which a “contingent election” could be triggered, sending the race to the House under the procedures of the [Twelfth Amendment](https://usw2.nyl.as/t1/265/dzzg12d6dwisgnkyim43pympr/3/b6059de6222173ef7a9675751d8594016f9a88c78c6ed98a1583df7d293ac8c4).

Here are some of the main points [Andy Craig](https://usw2.nyl.as/t1/265/dzzg12d6dwisgnkyim43pympr/4/a91e2c2123de53156ad802112702f1f965f0ff521e196c38d5a68e4eea3becf3) examines for your awareness.

- A contingent election could occur under the Twelfth Amendment if no candidate wins a majority in the Electoral College.
- In a contingent election, the House of Representatives votes by state delegation, with each state having one vote, requiring a majority of 26 states to win.
- A 269–269 Electoral College tie or a third-party candidate winning states could trigger a contingent election, though both scenarios are unlikely.
- Congress rejecting enough electors to prevent a candidate from reaching 270 votes is a concern, but the type of objection matters.
- The Electoral Count Reform Act (ECRA) of 2022 codifies two types of objections: “lawfully certified” and “regularly given.”
- “Lawfully certified” objections reduce the total number of electors and could result in a winner without a contingent election, while “regularly given” objections do not change the 538-elector threshold.
- The ECRA limits Congress’s ability to overturn a state’s certified electors, minimizing the likelihood of a contingent election.
- Even with narrow Republican majorities, it is unlikely enough members of Congress would vote to overturn the election under current law.
- Attempts to subvert the 2024 election are ongoing, but a contingent election in the House is not the expected mechanism.

To read the full piece: [https://​www​.cato​.org/​b​l​o​g​/​c​l​a​r​i​f​y​i​n​g​-​p​o​s​s​i​b​i​l​i​t​y​-​c​o​n​t​i​n​g​e​n​t​-​e​l​e​c​t​i​o​n​-​u​n​d​e​r​-​t​w​e​l​f​t​h​-​a​m​e​n​dment](https://www.cato.org/blog/clarifying-possibility-contingent-election-under-twelfth-amendment)

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