12th/20th Amendment Procedures

[Beefalow and the Consumer]

Which Congress gets to count and certify the electoral votes?  Is it the current Congress, or the incoming Congress?  In the event of a 269-269 tie, which Congress gets to vote for President and Vice President?  The current Congress, or the incoming Congress?  Who presides over the Senate?  The current Vice President?

Currently, Republicans control 26 state delegations in the House, and 51 of the Senate seats (plus Cheney's tiebreak).  So, in the current Congress, Bush and Cheney would win a 269-269 tie (baring shenanigans from rogue Republicans).

But the makeup of the next Congress is very much in doubt.  Especially the Senate.  A really interesting scenario is that the House doesn't choose a President (no majority of state delegations), and the Senate votes on the Vice-President, who would then become President.  If the Senate is tied 50-50, the President of the Senate will be break the tie for the person who becomes President... So Dick Cheney could cast the vote to make himself President???

(I find the wording of the 12th and 20th Amendments very confusing, so I'm not exactly sure how this works)

[Bogart]

If the election goes to the House, the states vote as a delegation. If they are unable to determine a winner by Jan. 20, the Vice President becomes Acting President (Dick Cheney) until they are able to come to a decision.

According to www.usconstitution.net, senators vote individually but only amongst the top two vote-getters for Vice President provided there is 2/3 quorum. If there is a tie, the current VP votes and could vote for himself.

The most interesting scenario is if the EC is tied and the election goes to the House which cannot agree by Inauguration Day. Cheney then becomes Acting President, remains VP and is, in a sense, VP-elect for the new administration. If this deadlock went on for some time, would Cheney be required to appoint an Acting Vice President who would serve until the new President is elected by the House and Cheney resumes his role as Vice President..

[Beefalow and the Consumer]

If the election goes to the House, the states vote as a delegation.

Yes, that's why I mentioned that in the current House, the Republicans control 26 delegations.  The current House would elect Bush.  That could change.

And what happens if the House remains deadlocked, and can't choose a President (the Democrats hold up the appointment of judges indefinitely - what do you think they'd do if the presidency were on the line)?

If they are unable to determine a winner by Jan. 20, the Vice President becomes Acting President (Dick Cheney) until they are able to come to a decision.

According to www.usconstitution.net, senators vote individually but only amongst the top two vote-getters for Vice President provided there is 2/3 quorum. If there is a tie, the current VP votes and could vote for himself. The most interesting scenario is that the House cannot decide by Inauguration Day and Cheney becomes Acting President and must also vote for himself to become Vice President in a new administration.  Would he as Acting President be required to appoint an Acting VP who would serve until the House elects a new President.

This seems like a very likely scenario to me.

Another interesting one, and quite feasible, is a Bush-Edwards administration.  I'd kinda like that, actually.

[Bogart]

If the election goes to the House, the states vote as a delegation.

Yes, that's why I mentioned that in the current House, the Republicans control 26 delegations.  The current House would elect Bush.  That could change.

And what happens if the House remains deadlocked, and can't choose a President (the Democrats hold up the appointment of judges indefinitely - what do you think they'd do if the presidency were on the line)?

If they are unable to determine a winner by Jan. 20, the Vice President becomes Acting President (Dick Cheney) until they are able to come to a decision.

According to www.usconstitution.net, senators vote individually but only amongst the top two vote-getters for Vice President provided there is 2/3 quorum. If there is a tie, the current VP votes and could vote for himself. The most interesting scenario is that the House cannot decide by Inauguration Day and Cheney becomes Acting President and must also vote for himself to become Vice President in a new administration.  Would he as Acting President be required to appoint an Acting VP who would serve until the House elects a new President.

This seems like a very likely scenario to me.

Another interesting one, and quite feasible, is a Bush-Edwards administration.  I'd kinda like that, actually.

There are quite a number of very interesting possibilities.  Think of 2000. In the same situation described above, Gore would have become Acting President only to have it taken away.

[True Federalist (진정한 연방 주의자)]

If the election goes to the House, the states vote as a delegation. If they are unable to determine a winner by Jan. 20, the Vice President becomes Acting President (Dick Cheney) until they are able to come to a decision.

According to www.usconstitution.net, senators vote individually but only amongst the top two vote-getters for Vice President provided there is 2/3 quorum. If there is a tie, the current VP votes and could vote for himself.

There has been considerable debate in various threads on this forum as to whether or not the VP can break that tie.  The 12th amendment explicitly sets a different standard for the quorom required for election of a Vice President, so some have argured that the standard mentioned for that vote in the 12th Amendent calling for "a majority of the whole number" should be taken literally and that the Vp cannot break a tie and that even a 50-49 vote would be insuficient since 50 is a not a majority of the whole number, i.e., 100 senators.

[Bogart]

If the election goes to the House, the states vote as a delegation. If they are unable to determine a winner by Jan. 20, the Vice President becomes Acting President (Dick Cheney) until they are able to come to a decision.

According to www.usconstitution.net, senators vote individually but only amongst the top two vote-getters for Vice President provided there is 2/3 quorum. If there is a tie, the current VP votes and could vote for himself.

There has been considerable debate in various threads on this forum as to whether or not the VP can break that tie.  The 12th amendment explicitly sets a different standard for the quorom required for election of a Vice President, so some have argured that the standard mentioned for that vote in the 12th Amendent calling for "a majority of the whole number" should be taken literally and that the Vp cannot break a tie and that even a 50-49 vote would be insuficient since 50 is a not a majority of the whole number, i.e., 100 senators.

You're right that the wording of the 12th Amendment does seem to suggest that it would require 51 votes to elect a VP. This wouldn't preclude that the VP could break the tie, but that only in a 50-50 situation, where the VP's vote would make 51, would the vote result in a VP being elected.

[True Federalist (진정한 연방 주의자)]

Which Congress gets to count and certify the electoral votes?  Is it the current Congress, or the incoming Congress?  In the event of a 269-269 tie, which Congress gets to vote for President and Vice President?  The current Congress, or the incoming Congress?  Who presides over the Senate?  The current Vice President?

The Constitution is silent as to which Congress counts the votes, but the date that is set in law for Congress to count the votes is January 6th or three days after the first meeting of Congress.  This often gets changed on a one tome basis when the 6th is an inconvienient date, but if the old Congress tried after November 2 to change the date so that it could select Bush and/or Cheny when the new Congress wouldn't, it would be legal, but the political outcry over it would prevent that from happening.

In the event there is no Vice President or the VP is busy being the Acting Preseident, the President pro tem of the Senate would preside over the Senate.  Because of the 25th Amendment, he rarely has to worry about that anymore, but that would be the case.  Since the Senate is a continuous body, the President pro tem would remain Senator Ted Stevens of Alaska until he either dies, resigns, or is replaced by another vote.

In the event that both the House and the Senate can't make a decision by Januray 20th then the line of Presidential Succession will be followed  to get an Acting President who were serve as such only until a real President or Vice President was elected.  So on noon January 20th, the Speaker of the House (if eleigible to be President) would be asked to resign as Representative and Speaker and assume the office of Acting President.  If the Speaker were not eligible or refused the honor then the President pro tem of the Senate would so act, If the President pro tem was not eligible ir refused to resign as Senator then it woudl go to the Secretary of State.  Given what the composition of the House and Senate would be in the event of 269-269 EV tie, we would have either Acting President Hastert or Acting President Pelosi (depending on who was Speaker) or Acting President Stevens (if the composition of the Senate changed enough so that Byrd became the PPT again, then the Senate would also elect Edwards as VP) or Acting President Powell.  I can see reasons why Hastert, Pelosi and Stevens might refuse to resign their Congressional seat, but I see no reason why Powell would refuse to accept the position.

[True Federalist (진정한 연방 주의자)]

You're right that the wording of the 12th Amendment does seem to suggest that it would require 51 votes to elect a VP. This wouldn't preclude that the VP could break the tie, but that only in a 50-50 situation, where the VP's vote would make 51, would the vote result in a VP being elected.

No, it wouldn't make it 51 because the VP is not a Senator.  Even if he were to vote for himself when the Senate was tied 50-50, it still would be only 50 Senators voting for him which is not a majority of the whole number.

[Bogart]

You're right that the wording of the 12th Amendment does seem to suggest that it would require 51 votes to elect a VP. This wouldn't preclude that the VP could break the tie, but that only in a 50-50 situation, where the VP's vote would make 51, would the vote result in a VP being elected.

No, it wouldn't make it 51 because the VP is not a Senator.  Even if he were to vote for himself when the Senate was tied 50-50, it still would be only 50 Senators voting for him which is not a majority of the whole number.

That's what I thought you meant. I was only quoting the website referenced.  Under this interpretation, it would be impossible to break a tie, however.

[Beefalow and the Consumer]

or Acting President Pelosi

AAAAAAGH!

That's the scariest thing I've ever heard.  No system of government should ever lead to the possibility of "Acting President Pelosi," no matter how remote that possibility is

If the House cannot decide by January 20 he will become Acting President until the House DOES decide. The House can take until the next presidential election to choose. That is the way it works.

So, if there aren't 26 state delegations controlled by one party, it's pretty much a guarantee that the Acting President will be Acting until at least January 2007.

Damn, that could get messed up.

11/2/04: 269-269 tie, Democrats re-take CT House delegation, retake majority in Senate

1/6/05: House deadlocked on Presidential vote, Senate elects Edwards VP

1/20/05: Edwards becomes Acting President, appoints Acting VP, Cabinet.

11/7/06:  North Dakota elects Republican congressman, giving the Republicans their 26 states back.

1/3/07: House elects George W Bush President!!!!

1/4/07: George Bush sworn in, fires Edwards Cabinet, re-appoints Rumsfeld, Ashcroft, etc...

Now, this brings up an interesting question: would Bush be elegible for a 3rd term?  Would the House actually delay their election of Bush (until after 1/20/07) to allow him to be elegible for a 3rd term?

[True Federalist (진정한 연방 주의자)]

No, Bush would not be eligible for a third term under that scenario as he would have been elected twice already, even if the the House delayed until after January 20th.  However, delaying until after January 20th would leave Edwards as only being eligible to be elected president once as he would have served more than two years of a term to which some other person was elected President.  Actually, if you want a really wacked scenario, you could have the House be in deadlock as far as electing a President is concerned until January 3, 2009 with the Dems finally taking control.  Then if they elect Bush President on January 19th, he would serve only one day of his second term and not be eligible for another term, even if he had won the election of 2008.

[jimrtex]

The original Constitution does not specify any dates for terms of office.   The Continental Congress was given the authority to bring the Constitution into effect when 9 States had ratified the Constitution.   When this occured in 1788, the CC set the first Wednesday of January, February, and March 1789 for the selection of presidential electors, the casting of electoral votes, and the meeting of the Congress.  The first Wednesday in 1789 happened to be March 5 (originally the date would have been in February, but the 3 dates were pushed back a month because the CC could not get a majority for a meeting place, being split between NYC and somewhere further south).

When the two houses of Congress met in 1789, neither had a quorum, and took a month or so to get one.   Once both houses had a quorum, they counted the electoral votes and determined that Washington and Adams had been  elected.

The 1st Congress determined that since the Constitution specified terms of office of 2, 4, and 6 years, and their term began on March 5, that subsequent terms would begin on March 5, and be coincident for the Congress and the Presidency.  To ensure election of the President before the start of his term, they set the date of counting in the end of the previous Congressional term.

Though the congressional term began in March, it was customary for the sessions to begin in the late fall or winter.  This would less interfere with agriculture, the roads would be less likely to be bogged, and the risk of malaria and yellow fever in Washington less.  The second session would begin late in the even year, often after the next Congress had been elected, and some representatives had been defeated.

In 1801, when Jefferson and Burr were tied in EV the Congress met in February for the HoR to choose the President.  It was the outgoing Federalist-controlled HoR that contemplated electing Burr rather than the more despised Jefferson.  The 1801 election resulted in passage of the 12th amendment.   The 12th amendment changed the method of counting EV, but it did not change the schedule, and the 1801 election had confirmed that it was the outgoing Congress that counted the vote and chose the winner in case of a non-majority.

It was the outgoing HoR in 1825 that chose John Q Adams as President, and the Senate in 1837 that chose Johnson as Vice President.

The 20th Amendment was intended to eliminate the lame duck session of Congress by making the beginning of the session conform with the start of the term.  It also provided a short overlap (January 3 to January 20) for Congressional terms to begin before the Presidential term.   It was understood that the counting of electoral votes and possible selection of the President or Vice President by the HoR or Senate would be performed by the incoming Congress.

The actual dates for the election of Congress, the selection of presidential electors, the casting of electoral votes by the electors, and the counting of the electoral votes by Congress is legislated by Congress.  Curiously this follows the roughly monthly schedule used in 1789, election in the beginning of November, casting of electoral votes in the beginning of December, and the counting of electoral votes in the beginning of January.  Like Washington, the new president takes office somewhat after the new Congress.