Intrigue, mischief, and the 1800 presidential election | David Adler

The possibility that the 2024 presidential election could have resulted in an Electoral College tie which, under the 12th Amendment of the Constitution, would require the U.S. House of Representatives to choose the next president, reminds us of James Madison's call for a constitutional amendment to correct this mechanism, which he regarded as a fundamental flaw in our method for selecting the president.

"The present rule of voting for the President by the house of Representatives," the Father of the Constitution declared, "is so great a departure from the Republican principle of numerical equality, and even from the federal rule which qualified the numerical by a State equality and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends."

Madison's lament, one shared by Thomas Jefferson in letters written six days apart in August 1823, recalled the political intrigue and disreputable deal-making that characterized the election of 1800, the first — and one of two elections — decided by the House of Representatives. The indirect election of the president by the House, criticized for being two steps removed from a direct election which, they believed, best represented the republican principle that the sovereign people should elect the nation's highest office, constituted, in Jefferson's description "the most dangerous blot on our Constitution, and one which some unlucky chance will some day hit."

In that rancorous race — the "Revolution of 1800 — Vice President Jefferson was selected on the 36th ballot after six days of debate. He and his running mate, Aaron Burr, had tied in the Electoral College, each receiving 73 votes. His victory in the House was a product of the sort of intrigue that made the founders cringe. The Constitution of 1787 stipulated that members of the Electoral College — Electors — would cast two votes for president.

The candidate receiving a majority of the electoral votes would be declared the president. The candidate receiving the second most votes would become vice-president. There was no formal way to distinguish a vote for president from a vote for vice president. Jefferson defeated his ostensible opponent, the incumbent President John Adams, in the Electoral College, 73-65.

For the first time, however, with the development of political parties, slates of party candidates and means to enforce party expectations, Jefferson formed a ticket with Aaron Burr, whom everyone, including Burr, understood was the vice presidential candidate.

But Burr, known as "the man who could not wait," decided — surprise — that he would prefer the presidency. The tie forced the election into the House of Representatives and Burr's supporters immediately approached Federalist members, those who supported Adams, to negotiate deals in exchange for their votes. Jefferson's supporters were outraged by Burr's betrayal and the House agonized over its decision. The vote would be taken by the lame-duck House, not the newly elected House, because the newly minted Congress would not convene until March 4, 1801, and the country needed a new president.

The lame-duck House, dominated by the Federalists, was deeply disappointed by Adams' defeat and enough voted for Burr to deny Jefferson a first ballot victory. The maneuverings and back-door dealmaking extended the election until Alexander Hamilton, a leading Federalist and arch nemesis of Jefferson, persuaded his colleagues to vote for Jefferson on the 36th ballot on Feb. 17, 1801, because he disliked Burr more than Jefferson.

Burr, it will be recalled, "repaid" the favor in 1804 when he killed Hamilton in a duel.

The Madison-Jefferson letters presaged the 1824 election which, thrown to the House, resulted in the election of John Quincy Adams, even though Andrew Jackson had won both the popular and Electoral College vote. "Unlucky chance" had "hit."

David Adler, Ph.D., is a noted author who lectures nationally and internationally on the Constitution, the Bill of Rights and presidential power. His scholarly writings have been cited by the U.S. Supreme Court and lower courts by both Democrats and Republicans in the U.S. Congress. Adler can be reached at .