David Hejmanowski: When Congress picked the president


“If no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, The House of Representatives shall choose immediately, by ballot, the President.”

— 12th Amendment

U.S. Constitution

“Mr. Adams by the redemption of the pledge stood at once before the American people as a participant in the disgraceful traffic of Congressional votes for executive office.”

— Andrew Jackson,

Letter to Henry Lee, 1825

We’ve had our share of interesting presidential elections in our nation’s history. The tie of 1800. The electoral commission of 1876. The death of a candidate in 1872, the regional strategy in 1836 and the involvement of the Supreme Court in 2000. But only once, in 1824, has the 12th Amendment’s provision on allowing the House of Representatives to choose the president come into play.

The 12th Amendment came about because of the rise of political parties and the flaw in the original constitutional system for choosing the vice president that was exposed by the election of 1800. In that election, Thomas Jefferson, intended as the Democratic-Republican candidate for president, and Aaron Burr, the candidate for vice president, each received 73 electoral votes, enough to defeat incumbent President John Adams.

Because Jefferson and Burr were tied, the election went to the House of Representatives where it took 36 ballots before Jefferson (who had been stuck on eight states, exactly half) to receive the votes of 10 states, the majority needed to elect him. During the course of voting, Alexander Hamilton, the nation’s first Treasury Secretary, lobbied hard for delegates to abandon Burr. Though the two men had been feuding for years, this fuel added to that fire led to the 1804 duel in which Burr, the sitting vice president, killed Hamilton.

By 1824, Jefferson and Adams were gone from the political scene, the Federalist party was crumbling and regional factions each supported their own candidate for president. The South pushed for Sen. Andrew Jackson from Tennessee. New England supported Adams’ son, John Quincy Adams, the Secretary of State. The Midwest had Kentucky’s Henry Clay, then Speaker of the House. Mid-Atlantic support fell behind Secretary of the Treasury William Crawford.

Because of the factionalized nature of the election, none of the four men got a majority of the electoral votes, and thus none qualified for election to the presidency under the terms of the 12th Amendment. Jackson had the most electoral votes at 99, Adams was second at 84, Crawford had 41 and Clay had 37, including those from Ohio. Both Adams and Jackson backed Secretary of War John Calhoun for vice president and thus he did have enough votes to get elected.

Once an election goes to the House, any popular vote or electoral vote totals no longer have any sway, other than how they might influence members of Congress in their voting. Under the 12th Amendment, the president is then chosen by each state’s congressional delegation casting a vote — one single vote per state — based on a majority vote of that state’s House members.

There were 24 states in 1824, thus one candidate needed 13 states to win. Adams had won a majority of the electoral vote in seven states, Jackson in 11, Crawford in three and Clay in three, but because Clay had the fewest electoral votes, he was off the House ballot. Clay was not a fan of Jackson and threw his support behind Adams. When the House voted, Adams carried the seven states he had won in the Electoral College, the three Clay had won and three of Jackson’s — Louisiana, Illinois and Maryland — all of whom had split their electoral votes originally.

Jackson was understandably furious. He believed, based on unsourced reports, that Clay had given his support to Adams in exchange for a promise that Adams would make him Secretary of State. When Adams later did appoint Clay to that post, Jackson concluded that the “corrupt bargain” had really existed and pledged to run again. In 1828, he beat Adams handily, 178-83, in the Electoral College.

In the 192 years since, no presidential election has necessitated a vote of the states in the House to choose the president, although the 1876 election of our own Rutherford Hayes required a special electoral commission.


David Hejmanowski

Case Study

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Common Pleas Court.

No posts to display