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52 U. Louisville L. Rev. 345 (2014)
Avoiding a Corrupt Bargain: Ensuring Congress is Kept out of a Contingent Presidential Election
Michael J. McGee*

On Monday, December—yes, December—17, 2012, Barack Obama was re-elected as President of the United States. While many Americans would like to credit themselves for being the individuals who elect a president into the White House, in fact that is not technically true. In a culture enamored with the concept of democracy, it is rather surprising to remember that it is not technically the American citizenry that elects the President and the Vice President. Rather, the body known as the Electoral College elects both the President and Vice President of the United States, and its members were the ones to meet in December 2012 to formally reelect Barack Obama as President.

The election went swimmingly for Mr. Obama, but what if the election had been closer, as many experts predicted? What if, in fact, President Obama and Mitt Romney had ended up in an electoral gridlock with 269 electors apiece? At this point, the American people would have been introduced to perhaps the quirkiest aspect of a notoriously quirky method of election: the contingent election procedure of the Twelfth Amendment. This Amendment mandates that the House of Representatives vote in state delegations to choose the President, and Senators vote as individuals to select the Vice President.

Because this procedure would invite controversy and mistrust regarding Congress’s election of America’s executive leaders, this Note argues for a reform of the procedure used when the Electoral College vote is tied. In particular, this Note posits that Congress should use its conditional spending power to incentivize state adoption of the proportional system of allocating electoral votes in the event of an Electoral College tie. 

Part II of this Note discusses the history and implementation of the Electoral College and the Twelfth Amendment contingent election procedure. Part III examines the current state of potential solutions to the issues of methodology and the means of implementation of a new procedure. Finally, Part IV proposes a resolution for a new contingent procedure and the vehicle for implementing it.

* J.D. Candidate, May 2014, Louis D. Brandeis School of Law, University of Louisville; B.S., Economics, University of Louisville, May 2011. I offer my heartfelt thanks to my wife Kristin for steadfastly supporting me throughout my law school journey, and to my parents Bill and Joan for their enduring guidance and for instilling in me a keen appreciation for the importance of education.