May 24, 2012 – Essay #69 – Amendment XX, Section 4 – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

 

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