The topic of this episode is, "what is Congress' role in a contingent presidential election?"

Two centuries ago, America had a contingent presidential election. No candidate got a majority of votes, and thus it fell to Congress to decide who got to be president. Might the United States have another contingent election? Certainly it is possible. Four of the past six presidential elections have been very close. In 2020, had 44,000 voters in Georgia, Arizona and Wisconsin picked Trump instead of Biden we would have had a tied election, with each candidate receiving 269 electoral votes.

So what is Congress’s role in a contingent election? How does that work? To answer these questions I have with me my colleague, Dr. John Fortier. He is a senior fellow at the American Enterprise Institute, where he studies Congress and elections, election administration, election demographics, voting, and more. John is the coauthor of the books After the People Vote: A Guide to the Electoral College (AEI Press, 2020) and Absentee and Early Voting: Trends, Promises, and Perils (AEI Press, 2006). John also hosts The Voting Booth podcast.

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution, and few Americans think well of it. But Congress is essential to our republic. It is a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be.

And that is why we are here: to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation. I am your host, Kevin Kosar, and I’m a resident scholar at the American Enterprise Institute, a think tank in Washington DC.

John, welcome to the podcast.

John Fortier:

Thank you, Kevin. Pleasure to be here.

Kevin Kosar:

Let's start with a simple question. Why must a presidential candidate get 270 electoral votes in order to become the president?

John Fortier:

There's a short answer and a long answer. The short answer is that 270 is a majority of the electors that are possible to be cast.

The longer answer is that there was a debate in the Constitutional Convention about how to elect the president, but it came sort of late in the process. And I would say the first thing that they needed to decide is what did Congress look like? And there were all sorts of debates and back and forth before a compromise was reached where essentially the House of Representatives was one that represented the people more broadly. The states would have a number of House representatives based on their population and the Senate would be equal in the states.

Now when coming to the Electoral College—figuring out how to elect the president—there were two big principles. One, they had decided at this point that they wanted the president to be elected separately from the Congress. Not like a parliamentary system, not something coming out of the Congress. And secondly, that they were going to reflect that compromise in Congress.

And so, the real number of 270, or the larger number of electors that are available, are basically all of the states have two electors for the senators that they