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Twelfth Amendment to the United States Constitution
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Twelfth Amendment to the United States Constitution

The Twelfth Amendment to the United States Constitution amended the provisions of Article II relating to presidential elections. Originally, the U.S. Electoral College would elect both the President and the Vice President in a single election; the person with a majority would become President and the runner-up would become Vice President. The election of 1800, however, demonstrated some problems with the system. The Twelfth Amendment, proposed by Congress on December 9, 1803 and ratified by the requisite number of state legislatures on June 15, 1804, required electors to cast two distinct votes: one for President and another for Vice President.

See Wikisource for the text of the Amendment.

Electoral College under Article II

Article II provided an indirect method of election for the President; the states would choose, in such a manner as the legislature directed, a number of electors, who would in turn elect the President. The number of electors assigned to each state is equal to the number of Senators (always two) and Representatives (a minimum of one, proportional to population) representing the state in Congress. State legislatures were free to choose electors in any manner they wished, but no Senator or Representative could be an elector.

Each elector could cast two votes; at least one of those votes had to be for an individual not inhabiting the same state as the electors themselves (this provision was designed to keep electors from voting for the "favorite sons" of their respective states). The two Houses of Congress met jointly to count the electoral votes certified by the states, with the President of the Senate presiding. A majority of electoral votes was required to win. If more than one individual was voted for by a majority of electors (which was possible, since each elector cast two votes), the individual with the greater number of votes won. If there was a tie, the House of Representatives would choose from amongst the two candidates. If no individual had a majority, then the House of Representatives would choose from the five individuals with the greatest number of electoral votes. Voting in the House in such cases was by states, with all Representatives from a particular state casting one collective vote. Representatives from two-thirds of the states constituted a quorum, and the votes of a majority of states was necessary to choose a President.

The choosing of the Vice President was a simpler process. Whichever candidate received the greatest number of votes, except for the one elected President, became Vice President. The Vice President, unlike the President, did not require the votes of a majority of electors. In the event of a tie for second place between multiple candidates, the Senate chose one of them to be Vice President. Each Senator cast one vote; Article I granted the sitting Vice President a casting (or tie-breaking) vote.

Elections 1789–1804

The system of elections provided for by Article II did not foresee the rise of political parties. In 1789 and in 1792, the electors unanimously voted for George Washington. The makeup of Washington's Cabinet was a factor contributing to the creation of political parties. Washington's Secretary of the Treasury, Alexander Hamilton, often clashed with the Secretary of State, Thomas Jefferson. Hamilton favored a powerful national government, while Jefferson favored keeping most of the authority in the hands of the states. Supporters of Hamilton's philosophy came to form the Federalist Party, while those favoring Jefferson's ideas became the Democratic-Republican Party (the predecessor of the modern Democratic Party).

Thomas Jefferson contested the election of 1796 with John Adams, George Washington's Vice President. The Democratic-Republicans nominated Aaron Burr as Jefferson's running mate, or Vice Presidential candidate, while Thomas Pinckney fulfilled a like role in relation to the Federalist John Adams. At the time, however, regions sometimes defined politicians more than political parties. Thus, while John Adams received 71 votes and became President, his running mate failed to be elected. Instead, Jefferson, Adams' political opponent, became Vice President with 68 votes.

In 1800, Jefferson again ran for the Presidency, with Burr as his running mate. Adams, in his re-election bid, ran alongside Charles Cotesworth Pinckney (the brother of the aforementioned Thomas Pinckney). Jefferson and Burr each received 73 votes, Adams 65 votes, Pinckney 64 and John Jay one. It was clearly the intention of the Democratic-Republican Party to nominate Jefferson to the Presidency and Burr to the Vice Presidency. Nevertheless, when voting, the Electors had no way to distinguish between the two positions.

The election was then sent to the House of Representatives, which was dominated by Federalists with no desire to conform to the original plan of the Democratic-Republicans. There were sixteen states in the Union at the time, meaning that a candidate needed the votes of nine state delegations to win in the House of Representatives. On the first ballot, eight states voted for Jefferson and six voted for Burr, with two being equally divided. Over several days, the House voted more than 30 times without breaking the deadlock. At the goading of Alexander Hamilton and others, (who, while opposed to Jefferson, saw him as the proverbial "lesser of two evils" in comparison him to Burr) several Federalists did not cast ballots, allowing the Democratic-Republicans in the House to elect Jefferson on the 36th ballot.

Electoral College under Amendment XII

Because of what happened in the 1800 election, the Twelfth Amendment was proposed and adopted. The amendment, which applied to elections beginning in 1804, did not change the composition of the Electoral College. Rather, it amends the process whereby the Electoral College, or in some cases the House of Represenatives, chooses the President. Now, under the Twelfth Amendment, electors must cast distinct votes for President and Vice President, instead of two votes for President. No Elector may cast votes for Presidential and Vice Presidential candidates who both inhabit the same state as the Elector. It is, however, possible for an Elector to cast his votes for candidates from the same state, if the candidates' state is different from the Elector's. Furthemore, the Twelfth Amendment explictly precluded from being Vice President those ineligible to be President: people under thirty-five years of age, those who have not inhabited the United States for at least fourteen years, and those who are not natural-born citizens. It is unclear if the Twenty-second Amendment's term-limiting provisions prevent two-term Presidents from becoming Vice Presidents (see that article for a fuller discussion).

As under the original system, the votes are counted before both houses of Congress. A majority of votes is required for one to be deemed elected President or Vice President. When nobody has a majority, the House of Representatives, voting by states and with the same quorum requirements as under Article II, chooses a President. While the original Constitution allowed the House of Representatives to choose from the top five candidates, the Twelfth Amendment allows the House to consider no more than three candidates.

The Senate, similarly, may choose the Vice President if no candidate has received a majority of electoral votes. Its choice is limited to those with the "two highest numbers" of electoral votes. This provision does not mean that the Senate's choice is limited to two individuals; 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 for the conduct of balloting. Furthermore, the Twelfth Amendment provides that the votes of a majority of Senators are required to arrive at a choice; thus, the sitting Vice President is denied the power to cast a tie-breaking vote in these circumstances.

In order to prevent deadlocks from keeping the nation leaderless, the Twelfth Amendment provided that if the House could not choose a President before March 4 (at that time the first day of a Presidential term), the individual elected Vice President would act as President until one could be chosen by the House. The Twentieth Amendment changed the date for the commencement of Presidential terms to January 20 and permits Congress to direct, through legislation, which officer should act as President if both houses of Congress are deadlocked.

Elections 1804–present

The election of 1804, and every election since, has been conducted under the Twelfth Amendment. Only once since that time 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 between them), and every one fell short of the 131 votes necessary to win.

Since the House could only consider the top three candidates, Clay could not become President. Crawford's poor health following a stroke made his election in the House unlikely. Andrew Jackson fully expected that the House would vote for him, as he had won a plurality of the electoral vote. Instead, the House elected Adams on the first ballot with 13 states, followed by Jackson with seven and Crawford with three. 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 accused the pair of making a "corrupt bargain", and others understood this being a normal alliance in politics, as nowadays seen e.g in presidential candidates naming their running mates in order to strengthen their position.

After the election of 1824, the Democratic-Republican Party split into the Democratic Party and the Whig Party. In 1836, the Whigs 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 a Whig-controlled House. While the strategy failed in regards to the President, Democratic Vice Presidential nominee Richard Mentor Johnson received 147 electoral votes, one vote short of a majority; to be followed by Francis P. Granger with 77, John Tyler with 47 and William Smith with 23. In the Senate, however, Johnson won with 33 votes, followed by Granger with 17.

The Twelfth Amendment does not preclude the election of a President and Vice President from the same state; it only prevents an elector from voting for Presidential and Vice Presidential candidates who both inhabit the same state as the elector. Nevertheless, running mates conventionally come from different states to prevent situations wherein electors of the state in question are forced to vote for a candidate from a different party merely on the grounds of residency. The issue arose during the 2000 presidential election contested by George W. Bush (alongside running-mate Dick Cheney) and Al Gore (alongside Joe Lieberman). It was alleged that Cheney and Bush were both inhabitants of Texas, and that the Texas electors could therefore not cast their ballots for both. Bush's residency was unquestioned, as he was governor of Texas at the time. Cheney had lived and was registered to vote in Texas, but a few months before the election moved to Wyoming. A lawsuit alleging that Cheney remained an inhabitant of Texas was brought, but it was dismissed by the District Court for the Northern District of Texas.

References

11th Amendment Amendments
United States Constitution
13th Amendment