April 18, 2012 – Essay #43 – Amendment XII: Reforming the Electoral College – Guest Essayist: Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College
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 of 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.
Amendment XII: Reforming the Electoral College
America’s first four presidential elections were governed by Article II of the Constitution. The process worked well initially, which is perhaps unsurprising in retrospect. Nearly everyone expected that the revered General George Washington would be the nation’s first President. These expectations came to fruition when he was unanimously elected twice, in 1789 and 1792. The first contested presidential election did not occur until 1796.
This contested election nearly revealed a flaw in the voting process. But the next election, in 1800, brought the flaw more sharply into view, and it laid the groundwork for the introduction and ratification of the Twelfth Amendment. The provisions of this Amendment would replace Article II, Section 1, Clause 3 of the Constitution.
The problem stemmed from the fact that the original constitutional provision did not allow presidential electors to differentiate between their votes for President and Vice-President. Electors were simply expected to cast two ballots for President. When these votes were tallied, the first place winner became President and the second place winner became Vice-President. Such a process made sense in 1787, before the appearance of political parties. It made less sense after, as demonstrated during the election of 1800.
That year, the Democratic-Republican Party nominated Thomas Jefferson for President and Aaron Burr for Vice-President; the Federalist Party nominated John Adams and Charles Pinckney. Today, such nominations might seem rather routine, but in 1800, the practice of nominating separate candidates for President and Vice-President was relatively new.
When the vote was tallied, it was discovered that Jefferson and Burr had tied. Although the electors had intended to elect Jefferson for President and Burr for Vice-President, they were not permitted to distinguish between their votes for the two offices. The result was an electoral tie that threw the election into the Constitution’s secondary election procedure, known as the House contingent election.
At the time, the House was still controlled by the outgoing Federalist Party. Many Federalists did not like Jefferson and hoped to thwart his election by supporting Burr. Meanwhile, the Democratic-Republican congressmen continued to support their intended presidential candidate, Jefferson. A stalemate continued for the better part of a week. Neither Jefferson nor Burr could obtain the nine state votes needed for victory. Six days and thirty-six ballots later, one Congressman finally yielded, paving the way for Jefferson’s victory.
In the wake of such events, it was not long before a constitutional amendment was proposed to separate the voting for President and Vice- President. Such a solution might seem obvious to modern ears, but it was controversial in the early 1800s. The minority party, the Federalists, argued that the election process, as it then stood, made it possible for the minority party to have a representative in the executive branch. Some Democratic-Republicans also hesitated to change the election procedure. The Article II process had helped them in 1796 when John Adams, a Federalist, was elected President. Despite Adams’s victory, Jefferson had been able to defeat the Federalist vice presidential candidate, Thomas Pinckney.
The proposed constitutional amendment failed to pass the Senate by a single vote when it was first proposed in 1801. In 1803, however, the Twelfth Amendment finally gained enough support to pass both the Senate and the House. North Carolina became the first state to ratify the amendment on December 21, 1803. The amendment became effective when New Hampshire ratified it on June 15, 1804. Tennessee ratified it later, on July 27, 1804. Three states rejected the amendment.
The election process was tweaked and adjusted following the election of 1800, yet today it remains largely as the Founders created it. As a first step, the states cast electoral votes in the nationwide presidential election. If no candidate wins a majority of these state votes, then the House of Representatives must decide which of the top candidates will be the next President.
Tomorrow’s post will explain how this process—created by Article II and slightly modified by the Twelfth Amendment—continues to operate in presidential elections today.
Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. More information about Tara can be found at www.taraross.com or on Facebook or Twitter.