If the Electoral College ends in a 269-269 tie, or if no candidate reaches 270 electoral votes, the newly elected Congress decides the election in what’s called a contingent election. Under the 12th Amendment, the House of Representatives chooses the president, with each state delegation casting one vote, and the Senate chooses the vice president, with each senator voting individually.
It has never happened under the modern two-party system, but the 2024 map shows how close it can come.
How could a 269-269 tie happen? #
There are 538 electoral votes: one for each of the 435 House members and 100 senators, plus three for Washington, D.C. under the 23rd Amendment. Winning requires a majority, 270. Because 538 is even, a 269-269 split is possible.
Here’s a concrete version using the 2024 results. Kamala Harris won 226 electoral votes, including the single vote from Nebraska’s 2nd Congressional District. Add Pennsylvania (19), Michigan (15) and Wisconsin (10) and that coalition reaches exactly 270. Now move Nebraska’s 2nd District to the other side, and the result is 269-269.
That’s why Nebraska’s and Maine’s district-by-district systems draw so much attention. Our guide to how Maine and Nebraska split their electoral votes explains the rules, and our look at the 2028 swing states shows which states will decide how close the next map gets.
A contingent election can also happen without a tie, if a third candidate wins enough electoral votes that nobody reaches 270.
Which Congress decides a contingent election? #
The newly elected one. The Congress elected in November is sworn in on January 3, and it counts the electoral votes in a joint session on January 6. For the 2028 presidential election, that means the House and Senate chosen in November 2028 would decide a tie, not the Congress elected in the 2026 midterms.
The Electoral Count Reform Act of 2022 tightened the counting process. It made clear that the Vice President’s role in the joint session is ministerial, with no power to reject electoral votes, and it raised the bar for objections to a state’s votes to one-fifth of the members of each chamber. Our explainer on the safe harbor deadline covers the steps before the count.
How does the House choose the president? #
The House votes by state, not by member. Each of the 50 state delegations gets one vote. D.C. gets none, because it has no voting member of the House.
- One state, one vote. California’s delegation of more than 50 members casts one vote, and so does Wyoming’s single representative.
- 26 states to win. A candidate needs a majority of the states, 26 of 50.
- Delegations vote internally first. Each delegation decides its state’s vote by majority of its members. A delegation split evenly, say 4-4, may be unable to cast a vote, and its state doesn’t count toward anyone’s total.
- Quorum. Members from at least two-thirds of the states must be present.
- Top three only. The House can choose only among the three candidates with the most electoral votes.
Because the vote runs by state, what counts is which party controls more state delegations, not which party has more House seats overall. Small states carry the same weight as large ones.
How does the Senate choose the vice president? #
The Senate votes as individuals. Each of the 100 senators casts one vote, and a candidate needs a majority of the whole Senate, 51 votes. The Senate chooses between the two candidates with the most electoral votes for vice president.
Because the two chambers vote separately under different rules, they could in theory pick a president and vice president from different parties.
The Senate has done this once. In 1836, Martin Van Buren won the presidency outright, but his running mate, Richard Mentor Johnson, fell one vote short of a majority when Virginia’s electors refused to vote for him. In 1837 the Senate chose Johnson as vice president.
What if Congress is still deadlocked on Inauguration Day? #
The House can vote as many times as it needs to, but the term still begins at noon on January 20. The Constitution and federal law cover the gap:
- If the Senate has chosen a vice president but the House hasn’t chosen a president, the 20th Amendment makes the vice president-elect acting president until the House decides.
- If neither chamber has chosen, the Presidential Succession Act puts the Speaker of the House next in line to act as president. The Speaker must resign from the House to serve. If the Speaker doesn’t, the president pro tempore of the Senate is next, under the same condition.
Has Congress ever picked the president? #
Twice.
1800: Jefferson and Burr #
Under the original Constitution, each elector cast two votes for president without distinguishing a vice-presidential choice. In 1800, Thomas Jefferson and his running mate Aaron Burr tied at 73 electoral votes each. The House, still controlled by the outgoing Federalists, took 36 ballots before electing Jefferson. The 12th Amendment, ratified in 1804, created separate votes for president and vice president.
1824: Adams, Jackson, Crawford and Clay #
Four candidates split the electoral vote: Andrew Jackson 99, John Quincy Adams 84, William Crawford 41 and Henry Clay 37. With 131 needed, the House chose among the top three. Clay, the Speaker, backed Adams, and the House elected Adams even though Jackson had led in both electoral and popular votes. When Adams made Clay secretary of state, Jackson’s supporters called it the “corrupt bargain.”
Frequently asked questions #
Can faithless electors cause or break a tie? #
In theory. An elector who votes for someone other than their pledged candidate could turn a 270-268 win into a tie or break a tie. Most states now require electors to vote as pledged and can replace those who don’t, and the Supreme Court upheld those laws in Chiafalo v. Washington (2020). Our guide to whether electors can change their vote goes into detail.
Does the national popular vote break an Electoral College tie? #
No. The popular vote has no role in a contingent election. A candidate could win the popular vote by millions and still lose in the House.
Can a third-party candidate trigger a contingent election? #
Yes. If a third candidate wins any electoral votes and keeps both major-party candidates below 270, the House decides, and the third candidate would be eligible as one of the top three.
Would the House vote be by party? #
Nothing requires members to vote with their party, but in practice most would be expected to. That’s why control of state delegations after the House elections, not the national House majority, would decide a contingent election. The 12th Amendment is on the Constitution Annotated site if you want the exact text.
Where can I follow the 2028 race before the map takes shape? #
The nominees aren’t known yet. Election Tracker’s 2028 Primary tab shows national polls of both parties’ fields with polling averages, and its Market Sentiment tab shows read-only Polymarket prices for the 2028 winner and nominee markets, labelled as trader sentiment. The app doesn’t draw electoral maps, so pair it with a map tool if you want to game out 269-269 scenarios.