Ok, now I am really confused.
Yesterday, I wrote a post referring to a Steve Kornacki column about the possibility (granted: extremely remote) that an independent campaign by Michael Bloomberg could throw the 2008 presidential election into the House of Representatives. I raised the possibility that this could become a strategic issue for the DCCC and RNCC, especially in states like North Carolina, where the (very conceivable) shift of a single seat into the Republican column could alter the balance of the state delegation, thus upsetting the Democrats' current one-vote advantage in terms of state delegation control. (For why this matters, consult Kornacki's column.) After I posted the item, Kornacki wrote to say that he was under the impression that it was the present House that would meet to settle the electoral college deadlock–that is, the Representatives elected in 2006, not in November 2008. I checked the text of the 12th Amendment, which said that the House was to consider the matter "immediately" after the electors met in December, which seemed to suggest that it was indeed the lame-duck Congress that held sway. I wrote a correction.
Today, a Politcker legal eagle sent the following email, taking issue with the corrected item:
The electors meet in their respective state capitals in mid-December and the ballots are opened and counted in the beginning of January–AFTER the new congress is sworn in. If after the ballots are counted no one has 270, the election for president is thrown into the House.
Kornacki went and did some digging and found an academic paper that suggests that it was once the lame-duck Congress that picked the president (as in, say, 1824, the only time since the passage of the 12th Amendment that an election has been thrown into the House), but that the procedure changed with the passage of the 20th Amendment, which moved the presidential inaugration date from March to January. I looked at the amendment and couldn't find any specific reference to Kornacki's scenario. Steve also sent along the following reminiscence:
Wait, I just realized I have a fuzzy childhood memory that can answer this. In the fall of '92, there was an open Congressional seat where I lived and, dork that I was, I insisted on having my parents take me to some of the debates. Perot was running and at each debate, the 'Who would you vote for if the election went to the House?' question was asked. So there; that settles it — it's the new Congress, not the lame duck one.
With all due respect to Steve's dorky memories, however, I'm still feeling uncertain on this one. Does anyone out there have a working knowledge of the constitution? (Not you, David Addington!) Please email your interpretations of the 12th Amendment to firstname.lastname@example.org.
If it does turn out to be the new House that holds sway, I revert to my original position, which is that the Democrats should be very worried about these kinds of situations.