Twelfth Amendment to the United States Constitution

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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.

Background

Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3, each elector could vote for two persons. The two people chosen by the elector could not both inhabit the same state as that elector. This prohibition was designed to keep electors from voting for two "favorite sons" of their respective states. The person receiving the greatest number of votes, provided that number equaled a majority of the electors, was elected President.

If there were more than one individual who received the same number of votes, and such number equaled a majority of the electors, the House of Representatives would choose one of them to be President. If no individual had a majority, then the House of Representatives would choose from the five individuals with the greatest number of electoral votes. In either case, a majority of state delegations in the House was necessary for a candidate to be chosen to be President.

Selecting the Vice President was a simpler process. Whichever candidate received the second greatest number of votes became Vice President. The Vice President, unlike the President, was not required to receive votes from a majority of the electors. In the event of a tie for second place, the Senate would choose who would be Vice President from those tied, with each Senator casting one vote. It was not specified in the Constitution whether the sitting Vice President could cast a tie-breaking vote for Vice President under the original formula.

Problems emerged as soon as Presidential elections became competitive with George Washington's refusal to seek a third term.

In the 1796 election, John Adams, the Federalist Party presidential candidate, received a majority of the electoral votes. However, the Federalist electors scattered their second votes, resulting in the Democratic-Republican Party presidential candidate, Thomas Jefferson, receiving the second highest number of electoral votes and thus being elected Vice President. It became apparent that if the Vice President was a defeated electoral opponent of the President the two might not work together effectively. By having the President and Vice President elected on a party ticket, this possibility would be eliminated but it raised a different flaw in the arrangements.

On January 6, 1797, Representative William L. Smith of South Carolina responded to this result by presenting a resolution on the floor of the House of Representatives for an amendment to the Constitution requiring each elector to cast one vote for President and another for Vice President. However, no action was taken on his proposal, setting the stage for the deadlocked election of 1800.

The 1800 election exposed a defect in the original formula in that if each member of the Electoral College followed party tickets, there would be a tie between the two candidates from the most popular ticket. The emergence of partisan political activity caused the failure of the original constitutional plan.

The Federalist states in the House of Representatives decided to give their votes to Aaron Burr for President when he and Jefferson tied in the Presidential election of 1800. With help from Alexander Hamilton, the gridlock was finally broken on the thirty-sixth vote and Jefferson was elected President on February 17, 1801. The events in the House, combined with the increasing Democratic-Republican majorities in the House and Senate, prompted the Democratic-Republicans to call for a Constitutional amendment requiring separate votes for President and Vice President in the Electoral College. By doing this, the Democratic-Republicans could dash the Federalists' hopes of having any impact on the Presidential election of 1804.

Journey to Congress

In March 1801, weeks after the election of 1800 was resolved, two amendments were proposed in the New York state legislature that would form the skeleton of the Twelfth Amendment. Governor John Jay submitted to the state legislature an amendment that would require district election of electors in each state and Jedidiah Peck, a member of the lower house, submitted an amendment to adopt designation for the votes for President and Vice President. The two amendments were not considered until early 1802, as the state legislature took a break for the summer and winter. New York state senator DeWitt Clinton moved for the adoption of the amendment in January 1802 and shortly thereafter won a vacant seat in the U.S. Senate, where he was instrumental in bringing the designation amendment to Congress. The process continued in New York on February 15, when Representative Benjamin Walker of New York proposed the designation and district election amendments to the House. Debate on the amendments began in May and the Republicans wanted to quickly decide on the amendments and go home for the summer, while the Federalists argued that these ideas needed much more time than allowed for in the current session. Federalist Samuel W. Dana of Connecticut wanted an examination of the necessity of a Vice President. The amendment ultimately failed in the New York State Senate, but DeWitt Clinton was able to bring amendment talks to the House.

At this point, debate was ready to begin in Congress, but the Democratic-Republicans decided to wait for the 8th Congress, which would give them a larger majority and thus make the two-thirds requirement for Congress to submit a proposed Constitutional amendment to the states easier to achieve.

Congressional debate

On the very first day of the 8th Congress, the House initiated a Committee of the Whole in order to consider the designation amendment. The first formulation of the amendment had the five highest electoral vote earners on the ballot in the House if no one candidate had a majority of the electoral votes. Republican John Clopton of Virginia, the largest state in the Union, argued that having five names on the list for a contingency election took the power from the people, so he proposed that there be only two names on the list. On October 20, the House appointed a seventeen-member committee (one Representative from each state) to fine-tune the amendment.

Along with the designation amendment, the original proposal starting in the New York state legislature was a dual-amendment that, along with designation, put forward the idea of district election of electors that Treasury Secretary Gallatin had supported. Shortly after the committee was formed, Federalist Benjamin Huger attempted to add a provision regarding district elections to the proposed amendment. The committee ignored him and district election disappeared.

The committee then submitted an updated version of the designation amendment to the Committee of the Whole on October 23 that changed the number of candidates in a contingency election from five to three and allowed the Senate to choose the Vice President if there were a tie in that race. Small Federalist states disliked the change from five to three, because it made it far less likely that a small-state candidate would make it to a contingency election. Huger and New York Federalist Gaylord Griswold argued that the Constitution was a compromise between large and small states and the method chosen by the Framers is supposed to check the influence of the larger states. Huger even asserted that the Constitution itself was not a union of people, but a union of large and small states in order to justify the original framework for electing the President. Designation, argued Griswold and Huger, would violate the spirit of the Constitution by taking away a check on the power of the large states.

Next up for the Federalists was Seth Hastings of Massachusetts, who submitted the argument that the designation amendment rendered the Vice Presidency useless and advocated for the elimination of the three-fifths clause. John C. Smith asked the inflammatory question of whether or not the proposed amendment was to help the reelection of Jefferson. Speaker Nathaniel Macon called this inappropriate. After Matthew Lyon of Kentucky denounced any reference to the three-fifths clause as mere provocation, the House easily passed the resolution 88-39 on October 28. Attention then turned to the Senate.

By October 28, the Senate had already been discussing the designation amendment. Republican DeWitt Clinton expected that the Senate, with a 24-9 Republican majority would quickly passing the amendment, but the Federalists essentially began filibustering by proposing ludicrous legislation. Federalist Jonathan Dayton proposed that the office of the Vice President should be eliminated and his colleague, Uriah Tracy, seconded it. On the other side, William Cary Nicholas was simply worried that Congress would not submit the amendment in time for the states to ratify it before the 1804 election. Despite Nicholas’ concern, the Senate would not seriously deal with the amendment again until November 23 as horse racing, among other things, occupied the Representative's attention.

Much as it had in the House, debate centered around the number of candidates in a contingency election and the philosophical underpinnings of the Constitution. Again, small Federalist states vehemently argued that three candidates gave too much power to large states to pick presidents. Republican Pierce Butler of South Carolina argued that the issues with the election of 1800 were unlikely to happen again and he would not advocate changing the Constitution simply to stop a Federalist Vice President. On the other side of the aisle, John Quincy Adams argued that the change from five to three gave an advantage to the people that violated the federative principle of the Constitution. Rather than have the office of the President balanced between the states and the people, Adams felt designation of President and Vice President would tip that scale in favor of the people.

In response, the Republicans appealed to democratic principles. Samuel Smith of Maryland argued that the presidency ought to be as closely accountable to the people as possible. As such, having three candidates in a contingency election is far better than having five, because it is possible to have the fifth best candidate become President otherwise. Also, designation itself would drastically cut down the number of elections that would reach the house, and the President is then much more likely to be the people’s choice. Another of Smith’s arguments was simply the election of 1800. William Cocke of Tennessee took a different approach when he argued that the entire small state argument of the Federalists was simply out of self-interest.

One last order of business for the amendment was to deal with the possibility that the House would fail to choose a President by March 4. It was the least controversial portion of the twelfth amendment and John Taylor proposed that the Vice President would take over as President in that peculiar occurrence, “as in case of the death or other Constitutional disability of the President."

It seemed clear all along that the Republican dominance would render this a no-contest and the Republicans were just waiting for all of their votes to be present, but the Federalists had one last defense. A marathon session of debate, lasting from 11 A.M. to 10 P.M., was the order of the day on December 2, 1803. Most notably, Uriah Tracy of Connecticut argued in a similar vein as Adams when he invoked the federative principle of the Constitution. For Tracy, the original two-vote system was formulated in order to give the small states a chance to elect the Vice President, who would be a check on the President’s powers. In essence, the states balanced the power of the people. However, as Kuroda points out, this only works if you make it partisan, as Georgia (for example) was a Republican small state.

Proposal and ratification

The Twelfth Amendment was proposed by the 8th Congress on December 9, 1803, when it was approved by the House of Representatives by vote of 83–42, having been previously passed by the Senate, 22–10, on December 2. The amendment was officially submitted to the states on December 12, 1803, and was ratified by the legislatures of the following states:

1. North Carolina: December 21, 1803
2. Maryland: December 24, 1803
3. Kentucky: December 27, 1803
4. Ohio: December 30, 1803
5. Pennsylvania: January 5, 1804
6. Vermont: January 30, 1804
7. Virginia: February 3, 1804
8. New York: February 10, 1804
9. New Jersey: February 22, 1804
10. Rhode Island: March 12, 1804
11. South Carolina: May 15, 1804
12. Georgia: May 19, 1804
13. New Hampshire: June 15, 1804

Having been ratified by the requisite three-fourths of the several states, there being 17 states in the Union at the time, the ratification of the Twelfth Amendment was completed. It was subsequently ratified by:

14. Tennessee: July 27, 1804 15. Massachusetts: 1961 (after rejection: February 3, 1804)

The amendment was rejected by:

1. Delaware: January 18, 1804
2. Connecticut: May 10, 1804

On September 25, 1804, in a circular letter to the governors of the states, Secretary of State Madison declared the amendment ratified by three-fourths of the states.

Electoral College under the Twelfth Amendment

While the Twelfth Amendment did not change the composition of the Electoral College or the duties of the electors, it did change the process whereby a President and a Vice President are elected. The new electoral process was first used for the 1804 election. Each presidential election since has been conducted under the terms of the Twelfth Amendment.

The Twelfth Amendment stipulates that each elector must cast distinct votes for President and Vice President, instead of two votes for President. Additionally, electors may not vote for presidential and vice-presidential candidates who both reside in the elector's state—at least one of them must be an inhabitant of another state.

If no candidate for President has a majority of the total votes, the House of Representatives, voting by states and with the same quorum requirements as under the original procedure, chooses the President. The Twelfth Amendment requires the House to choose from the three highest receivers of electoral votes, compared to five under the original procedure.

The Twelfth Amendment requires a person to receive a majority of the electoral votes for Vice President for that person to be elected Vice President by the Electoral College. If no candidate for Vice President has a majority of the total votes, the Senate, with each Senator having one vote, chooses the Vice President. The Twelfth Amendment requires the Senate to choose between the candidates with the "two highest numbers" of electoral votes. If multiple individuals are tied for second place, the Senate may consider all of them, in addition to the individual with the greatest number of votes. The Twelfth Amendment introduced a quorum requirement of two-thirds of the whole number of Senators for the conduct of balloting. Furthermore, the Twelfth Amendment requires the Senate to choose a Vice President by way of the affirmative votes of "a majority of the whole number" of Senators.

To prevent deadlocks from keeping the nation leaderless, the Twelfth Amendment provided that if the House did not choose a President before March 4 (then the first day of a Presidential term), the individual elected Vice President would "act as President, as in the case of the death or other constitutional disability of the President." The Twelfth Amendment did not state for how long the Vice President would act as President or if the House could still choose a President after March 4. Section 3 of the Twentieth Amendment, adopted in 1933, supersedes that provision of the Twelfth Amendment by changing the date upon which a new presidential term commences to January 20, clarifying that the Vice President-elect would only "act as President" if the House has not chosen a President by January 20, and permitting the Congress to statutorily provide "who shall then act as President, or the manner in which one who is to act shall be selected" if there is no President-elect or Vice President-elect by January 20. It also clarifies that if there is no President-elect on January 20, whoever acts as President does so until a person "qualified" to occupy the Presidency is elected to be President.

The Twelfth Amendment explicitly states the constitutional requirements as provided for the President also apply to being Vice President. It is unclear whether a two-term president could later serve as Vice President. Some argue that the Twenty-second Amendment and Twelfth Amendment both bar any two-term president from later serving as Vice President as well as from succeeding to the presidency from any point in the United States presidential line of succession. Others contend that the Twelfth Amendment concerns qualification for service, while the Twenty-second Amendment concerns qualifications for election, and thus a former two-term president is still eligible to serve as Vice President. The applicability of this distinction has not been tested, as no former president has ever sought the vice presidency, and thus the courts have never been required to make a judgment regarding the matter. During Hillary Clinton's 2016 candidacy, she jokingly said that she had considered naming Bill Clinton as her Vice President, but was advised it would be unconstitutional.

Elections since 1804

Starting with the election of 1804, each Presidential election has been conducted under the Twelfth Amendment.

Only once since then has the House of Representatives chosen the President: In 1824, Andrew Jackson received 99 electoral votes, John Quincy Adams (son of John Adams) 84, William H. Crawford 41 and Henry Clay 37. All of the candidates were members of the Democratic-Republican Party (though there were significant political differences among them), and each had fallen short of the 131 votes necessary to win. Because the House could only consider the top three candidates, Clay could not become President. Crawford's poor health following a stroke made his election by the House unlikely. Andrew Jackson expected the House to vote for him, as he had won a plurality of the popular and electoral votes. Instead, the House elected Adams on the first ballot with thirteen states, followed by Jackson with seven and Crawford with four. Clay had endorsed Adams for the Presidency; the endorsement carried additional weight because Clay was the Speaker of the House. When Adams later appointed Clay his Secretary of State, many—particularly Jackson and his supporters—accused the pair of making a "Corrupt Bargain". In the less contested election for vice president, John C. Calhoun received 182 electoral votes and was elected outright.

In 1836, the Whig Party nominated different candidates in different regions in the hopes of splintering the electoral vote and denying Martin Van Buren, the Democratic candidate, a majority in the Electoral College, thereby throwing the election into the Whig-controlled House. However, this strategy failed with Van Buren winning majorities of both the popular and electoral vote. In that same election no candidate for Vice President secured a majority in the electoral college as Democratic Vice Presidential nominee Richard Mentor Johnson did not receive the electoral votes of Democratic electors from Virginia, because of his relationship with a former slave. As a result, Johnson received 147 electoral votes, one vote short of a majority; to be followed by Francis Granger with 77, John Tyler with 47 and William Smith with 23. This caused the Senate to choose whether Johnson or Granger would be the new Vice President. Johnson won with 33 votes, with Granger receiving 16.

Since 1836, no major U.S. party has nominated multiple regional presidential or vice presidential candidates in an election. However, since the Civil War there have been two serious attempts by Southern-based parties to run regional candidates in hopes of denying either of the two major candidates an electoral college majority. Both attempts (in 1948 and 1968) failed, but not by much—in both cases a shift in the result of two close states would have forced the respective elections into the House.

In 1992, Ross Perot specifically cited his disinclination to forcing an election into the House when, in July of 1992, he temporarily suspended his independent candidacy. When he resumed his candidacy in early October 1992, the issue of that year's election being decided in the House of Representatives never came up significantly in the last month of the campaign.

In modern elections, a running mate is often selected in order to appeal to a different set of voters. A Habitation Clause issue arose during the 2000 presidential election contested by George W. Bush (running-mate Dick Cheney) and Al Gore (running-mate Joe Lieberman), because it was alleged that Bush and Cheney were both inhabitants of Texas and that the Texas electors therefore violated the Twelfth Amendment in casting their ballots for both. Bush's residency was unquestioned, as he was Governor of Texas at the time. Cheney and his wife had moved to Dallas five years earlier when he assumed the role of chief executive at Halliburton. Cheney grew up in Wyoming and had represented it in Congress. A few months before the election, he switched his voter registration and driver's license to Wyoming and put his home in Dallas up for sale. Three Texas voters challenged the election in a federal court in Dallas and then appealed the decision to the United States Court of Appeals for the Fifth Circuit, where it was dismissed.