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Twelfth Amendment: Electoral College; Take Two

The Passage

Before 1804, American presidents were elected a little differently. Under the original rules listed in Article II of the Constitution, members of the Electoral College cast two votes for the candidates of their choice, without distinguishing between who they wanted to be president or vice president. When the votes were counted, the person with the most votes was elected president, while the second-place winner became the vice president. Ties for first place were settled in the House of Representatives, while ties for second place were settled in the Senate.

These rules governed the first four presidential elections; however, a problem quickly arose. In 1796, Federalist John Adams was elected president, and his political rival, Democratic-Republican Thomas Jefferson, was elected vice president by virtue of having the second-most votes. Neither the Federalists nor the Democratic-Republicans wanted to have members of opposing parties leading the country together, so both worked out a plan for the next election. One of their Electoral College voters would abstain from casting a second vote so as to provide their presidential candidate with one extra vote. However, the Democratic-Republicans’ plan fell through, and Jefferson ended up with an equal number of votes as his vice presidential candidate, Aaron Burr, in the election of 1800. The House of Representatives was forced to settle the tie, and it was obvious that a change had to be made. 

In 1803, Congress proposed the Twelfth Amendment, which re-wrote the original Electoral College voting rules, allowing electors to differentiate between president and vice president. The Twelfth Amendment was ratified by the necessary thirteenth state on June 15th, 1804, and the new rules took effect in the presidential election that November. 

Amendment Text

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and 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. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Interpretation

Under the reformed Electoral College system, each elector casts a separate vote for both a presidential and a vice presidential candidate. Electors were still not allowed to vote for candidates who both reside in the elector’s state - they must vote for at least one candidate who lives in another state. Just like in the original system, the House of Representatives was still responsible for settling any ties for presidential candidates, specifically by selecting a president from the three candidates who receive the greatest number of electoral votes. The Senate was still responsible for settling ties for vice presidential candidates by selecting from the top two candidates receiving electoral votes. Finally, the Twelfth Amendment specifically stated that vice presidential candidates must fulfill the same constitutional requirements for the presidency in order to be eligible for the office, a new stipulation in the Constitution.

Major Court Cases

The Supreme Court cases that address the Twelfth Amendment have often focused on state processes for selecting electors. Article II of the Constitution allows states to decide how they wish to appoint electors, and the Twelfth Amendment itself only details the voting procedures for electors once they have been selected. Thus, the Court has repeatedly ruled that states have broad discretion in determining who can be an elector and how they must vote. For example, the Court ruled in the 1952 case Ray v. Blair that states may reject potential electors who refuse to support the nominees of their political party. Similarly, the Court ruled in the 2020 case Chiafolo v. Washington that states have the right to punish or replace electors who refuse to cast their electoral vote for the candidate chosen by the state’s voters. Since the Twelfth Amendment does not establish procedures for selecting electors, the matter is left up to states as Article II of the Constitution intended. 

Controversies

Though the Twelfth Amendment is fairly straightforward in updating the Electoral College process, it has not been without controversy. At the time of its passage, a few senators worried that establishing a separate ballot for the vice president would mean that vice presidential candidates would no longer be selected based on their merit, but based on advantages they could offer that might make their presidential candidate more electable. It’s true that today, we often see presidential nominees select VP candidates from swing states with competitive electoral votes, or select candidates who are supposedly able to mobilize voting groups that the president needs to win, such as evangelical Christians or voters from different racial categories.

Additionally, the Electoral College itself is a controversial institution in the United States. Over the past decades, many voters have increasingly supported allowing the popular vote of a presidential election to determine the victor. In five American elections so far, the winner of the presidency has actually received fewer votes than his opponent, but won because he secured the majority of Electoral College votes. This has raised questions about the extent to which the system is truly democratic. The common requirement that electors must vote for who receives the popular vote in their state may help to represent the interests of the state’s population; however, there is debate on whether or not this is what the Founders actually intended. Since the Electoral College was supposed to safeguard against citizens making a misinformed decision, the idea that it should solely reflect the will of the people counteracts the original intent and makes it even more unclear why we don’t abolish it in favor of a popular vote. 

Why Care?

The Twelfth Amendment established the electoral system we know today. Considerations about the value of this system must be weighed alongside its potential drawbacks. Any representative democracy must have the capacity to elect leaders that truly represent the interests of its citizens. As participants in the political system, we each have the responsibility to ensure that our voices are heard in the process of selecting a leader.

Think Further

  1. How did the Twelfth Amendment change how vice presidential candidates were selected to run for office? 
  2. Is it fair that the House of Representatives gets to settle ties by selecting from the top three candidates? What do you think should be done in a tie? 
  3. Why is it important that vice presidential candidates are only eligible to run if they fulfill the same constitutional requirements for the presidency? 

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  1. Levinson, Sanford. “Common Interpretation: the Twelfth Amendment.” Constitution Center, https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xii/interps/171. 
  2. Smentkowski, Brian P. “Twelfth Amendment: United States Constitution.” Encyclopædia Britannica, https://www.britannica.com/topic/Twelfth-Amendment.
  3. Kuroda, Tadahisa. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787 – 1804. Greenwood Press, 1994.