April 19, 2012 – Essay #44 – Amendment XII: A Tie in 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: A Tie in the Electoral College
Anti-Electoral College activists sometimes worry that the presidential election could end in a tie. Such a scenario, they might grouse, would create a “stalemate” and could even lead to “The Apocalypse.”
But an electoral tie has occurred already. This election did not result in the Apocalypse, but, as yesterday’s post discussed, there were a few days of congressional stalemate before a President was elected. The then-new nation did not devolve into chaos and rioting. Instead, the biggest consequence of the electoral tie was the Twelfth Amendment. These provisions replaced Article II, Section I, Clause 3 of the Constitution and make it harder (but not impossible) for a presidential election to end in a tie.
The Twelfth Amendment works hand-in-hand with the still operative Article II, Section I, Clause 2: This clause makes each state responsible for deciding how to appoint its own electors. In early elections, state legislatures employed a wide variety of methods—sometimes even selecting electors on their own. Today, all states conduct statewide popular elections for this purpose.
In short, when you go to the polls on Election Day, you are not voting for presidential candidates, even if it seems that way. In reality, you are voting for a slate of individuals, called electors. Most states award their electors in a “winner-take-all” fashion, so the winner of the state receives the state’s entire slate of electors. As an example, Barack Obama “won” the State of Rhode Island in 2008. But what that really meant is that four Democratic electors—not Obama himself—were elected by Rhode Islanders on that day.
The Twelfth Amendment dictates the constitutional responsibilities of electors. The primary responsibility of these Rhode Island electors, along with other electors from the remaining states, was to represent their states in a second election—the real presidential election.
This election among states’ electors occurs on a congressionally designated day in December. The Twelfth Amendment requires that each elector cast two ballots: one for a presidential candidate and one for a vice-presidential candidate. This requirement was a change from the Article II provision, which did not allow electors to distinguish between their votes for President and Vice-President. Both Article II and the Twelfth Amendment require that electors cast at least one ballot for someone who is not “an inhabitant of the same state with themselves.”
In practice, this means that a political party will handicap itself if it nominates presidential and vice-presidential candidates from the same state, because it automatically loses some votes from the home state of one candidate. In 2000, this provision caused Dick Cheney to make a point of establishing his residence in Wyoming. Had both Cheney and George W. Bush hailed from Texas, those electors would have been unable to vote for Cheney and Bush simultaneously.
After electors cast their ballots, their votes are recorded on “Certificates of Vote,” one of which goes to the President of the Senate, as required by the Twelfth Amendment. The President of the Senate presides over a joint session of Congress on January 6, and the votes are counted publicly at that time.
To be elected President, a candidate needs a majority of electoral votes. At this time, 270 votes constitute a majority of the Electoral College and will win the presidency for a candidate. If no candidate wins a majority, the Twelfth Amendment provides a back-up method for presidential selection. In this secondary election, the election of the President is sent to the House and the election of the Vice-President is sent to the Senate.
In the House vote, the Twelfth Amendment provides that each state delegation is granted one vote. (This remains unchanged from the original Article II procedure.) California, with its current delegation of fifty-three Congressmen, would cast one vote, as would South Dakota, with its single Congressman. A President is elected when one candidate wins a majority of states. Article II had allowed the House to choose from the top five presidential candidates (or two in the event of certain ties), but the Twelfth Amendment now requires the House to choose from only the top three presidential candidates.
The Twelfth Amendment also added a new procedure for election of the Vice-President: In the event that no candidate receives a majority, the Senate chooses from the top two vice-presidential candidates. Each Senator has one vote; Senators may vote for either of the top two vice- presidential contenders.
This system exists largely as it was originally proposed by the Constitutional Convention. The Twelfth Amendment tweaked the process, but substantively left the original procedure in place. Unfortunately, this system is now under attack.
The National Popular Vote movement seeks to convince a critical mass of states to award its electors to the winner of the national popular vote, instead of the winner of each state’s popular vote. NPV asks states to sign an interstate compact—basically, a contract—promising to take such action if enough other states sign on. If the movement succeeds, the constitutional election processes described in the Twelfth Amendment will remain only in theory. In practice, they will be gone. Instead, Presidents will be selected through a direct election system.
Surely the Founders would be disappointed in such a result. The Electoral College was a compromise between large and small state delegates at the Constitutional Convention. The delegates wanted the voice of the people to be reflected in the presidential election process, but they also recognized the need to protect minority groups—especially the small states—from the tyranny of the majority. Just as the composition of Congress reflected compromises between the large and small states, so did the presidential election procedure. Even the House contingent election, so disparaged by Electoral College opponents, was an important part of this compromise because of the advantage that it gave to small states.
The delegates would view efforts to abandon the Electoral College as unwise. Max Farrand reports on the delegates’ views in The Framing of the Constitution of the United States: “[F]or of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”
Yes, the Electoral College is the solution for any country and any decade. The system that has served Americans so well for so long will continue to do so. If we let it.
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.