The Twelfth Amendment: Reforming the Electoral College

The Twelfth Amendment to the United States Constitution, ratified on June 15, 1804, significantly altered the procedure for electing the president and vice president. It directly addresses and supersedes Article II, Section 1, Clause 3 of the original Constitution, which outlined the initial functioning of the Electoral College. The need for this amendment arose from unforeseen complications in the early presidential elections, particularly the elections of 1796 and 1800, which exposed critical flaws in the original system.

The Original Electoral College System: A Flawed Design

Under the original system established by the Constitution, each elector in the Electoral College cast two votes without differentiating between candidates for president and vice president. The candidate with the highest number of votes, provided it was a majority of the electors, was elected president. The candidate with the second-highest number of votes became vice president.

This system had several potential pitfalls:

Political Rivals in Executive Office: The 1796 election saw John Adams, a Federalist, elected as president, while his political opponent, Thomas Jefferson, an Anti-Federalist, became vice president. This led to constant friction and undermined the effectiveness of the executive branch.
The Danger of Electoral Ties: The election of 1800 resulted in a tie between Thomas Jefferson and Aaron Burr, both Democratic-Republicans. This tie necessitated a contingent election in the House of Representatives, highlighting a significant vulnerability in the system.
Contingent Election Process: In the event that no candidate secured a majority of electoral votes, or if multiple candidates tied for the most votes, the House of Representatives would conduct a contingent election to choose the president. Each state delegation would have one vote in this process. The Senate would hold a similar contingent election to choose the vice president if there was a tie for second place.

The original system worked reasonably well in the first two presidential elections because George Washington was the unanimous choice for president on both occasions. The real contest was for the vice presidency, where an overall majority was not required.

The Seeds of Change: The Elections of 1796 and 1800

The inherent flaws of the original Electoral College system became glaringly apparent in the elections of 1796 and 1800.

The Election of 1796: A Divided Executive

In the 1796 election, John Adams, the Federalist candidate, won the presidency. However, Federalist electors scattered their second votes, resulting in Thomas Jefferson, the Democratic-Republican candidate, receiving the second-highest number of electoral votes and becoming vice president. This created a situation where the president and vice president held opposing political views, making effective governance challenging. Federalist Representative William L. Smith recognized this problem, setting the stage for future complications.

The Election of 1800: A Deadlock and a Crisis

The 1800 election further exposed the system's vulnerabilities. Both major parties attempted to avoid the problems of 1796 by nominating separate presidential and vice-presidential candidates on a party ticket. The Democratic-Republicans nominated Jefferson for president and Aaron Burr for vice president and secured a majority of pledged electors.

However, the Democratic-Republican electors were reluctant to abstain from voting for one of their candidates to ensure Burr's election as vice president. Given the limitations of 18th-century communications, each elector assumed that someone else would take responsibility for casting the necessary abstention. As a result, every Democratic-Republican elector voted for both Jefferson and Burr, leading to a tie in the Electoral College.

This tie threw the election into the House of Representatives, where Federalist-controlled state delegations voted for Burr in an attempt to prevent Jefferson from becoming president. The House was deadlocked for 35 ballots before Jefferson finally secured the presidency.

The Genesis of the Twelfth Amendment

The near-constitutional crisis of 1800 spurred calls for reform. In March 1801, weeks after the election was resolved, two amendments were proposed in the New York State Legislature that would form the basis of the Twelfth Amendment. Governor John Jay proposed an amendment requiring district election of electors in each state, while Assemblyman Jedediah Peck proposed an amendment to designate votes for president and vice president.

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These proposals gained momentum, and in January 1802, New York State Senator DeWitt Clinton advocated for their adoption. Representative Benjamin Walker of New York introduced the designation and district election amendments to the House in February 1802.

Congressional Debates: Shaping the Amendment

The proposed amendment underwent significant debate in Congress, where various perspectives and concerns were raised.

Key Points of Contention

Number of Candidates in Contingent Election: The initial proposal included the five highest electoral vote earners on the ballot in the House if no candidate had a majority. John Clopton of Virginia argued that this took power away from the people and proposed reducing the number to two. The final version settled on three.
District Election of Electors: The original proposal included the idea of district election of electors, which Treasury Secretary Gallatin supported. However, this provision was ultimately dropped.
Role of Small States: Federalists from small states argued that reducing the number of candidates in a contingent election from five to three would diminish their influence, as it would be less likely for a small-state candidate to reach a contingent election. They argued that the Constitution was a compromise between large and small states, designed to check the influence of larger states.
Elimination of the Vice Presidency: Some Federalists, such as Jonathan Dayton and Uriah Tracy, proposed eliminating the office of vice president altogether.
The Three-Fifths Clause: Matthew Lyon of Kentucky denounced any reference to the three-fifths clause as mere provocation during the debates.

Arguments For and Against the Amendment

Federalist senators argued for retaining the original procedure for the Electoral College, while Democratic-Republicans appealed to democratic principles. Samuel Smith of Maryland argued that the presidency should be as closely accountable to the people as possible and that having three candidates in a contingent election was better than five. He also argued that designation would drastically reduce the number of elections reaching the House of Representatives.

Ratification and Implementation

Despite Federalist opposition, the Democratic-Republican majority in Congress passed the Twelfth Amendment. It was then submitted to the states for ratification.

Key Provisions of the Twelfth Amendment

The Twelfth Amendment brought about several key changes to the electoral process:

Separate Ballots for President and Vice President: Electors must cast distinct votes for president and vice president, instead of two votes for president.
Inhabitant Clause: The amendment adapts the provision from the original Article II text that forbids an elector from casting both their presidential votes for inhabitants of their own state. Under the Twelfth Amendment, one of the votes an elector casts-either their vote for president or their vote for vice-president-must be for someone who resides in a state other than the one where that elector lives.
Contingent Election Procedures: If no candidate for president has a majority of the total votes, the House of Representatives, voting by states, chooses the president from among the top three candidates. If no candidate for vice president has a majority, the Senate, with each senator having one vote, chooses the vice president from the two candidates with the highest number of electoral votes.
Quorum Requirements: The Twelfth Amendment introduced a quorum requirement of two-thirds of the whole number of senators for the conduct of balloting in the Senate.
Succession Provision: To prevent deadlocks, the Twelfth Amendment provided that if the House did not choose a president before March 4, the individual elected vice president would "act as President, as in the case of the death or other constitutional disability of the President."

The new electoral process was first used in the 1804 election.

Impact and Legacy

The Twelfth Amendment addressed the most pressing issues with the original Electoral College system. It ensured that the president and vice president were elected as a team, preventing political rivals from holding the highest offices in the executive branch. It also streamlined the contingent election process and provided a mechanism for succession in case of a deadlock.

Subsequent Elections and Challenges

While the Twelfth Amendment resolved many issues, it did not solve every problem related to presidential elections. Several subsequent elections led to further developments in the presidential selection process:

The Election of 1824: This was the only other time the House had to select the presidential candidate. Because of the Twelfth Amendment, the House could only choose between the top three vote-getters.
The Election of 1876: This election between Samuel Linden and Rutherford B. Hayes was highly disputed, with both nominees claiming victory in several states. Congress passed a federal law requiring state governors to certify their state’s vote under seal as a result of the disputed election.
The Election of 2000: The presidential nominee George W. Bush selected Dick Cheney as his running mate during the 2000 election. Bush won the 2000 election against Al Gore by a slim margin, and a challenge arose regarding the election results. Three Texas voters challenged the state’s electors to determine whether they violated the Twelfth Amendment’s habitation clause. The clause prevents electors from voting for nominees from their same state. Bush, as the governor, was a Texas citizen. However, several months before the election, Cheney had changed his voter registration and driver’s license to Wyoming.
Chiafalo v. Washington (2020): This Supreme Court case upheld the right of states to penalize "rogue electors" who do not vote for the candidate they pledged to support.

Ongoing Debates about the Electoral College

Despite the reforms brought about by the Twelfth Amendment, the Electoral College remains a subject of debate. Supporters argue that it is a fundamental part of the Constitution and that the Twelfth Amendment addressed the most critical flaws. Opponents argue that a popular election would be more democratic and representative of the will of the people.

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