The
Twelfth Amendment (
Amendment
XII) to the
United
States Constitution provides the procedure by which the
President and
Vice President
are elected. It replaced the procedure of the
Electoral College under
Article II, Section 1, Clause 3, which demonstrated problems in
the elections of
1796 and
1800. The Twelfth
Amendment was proposed by the
Congress on December 9, 1803 and was
ratified by the requisite number of
state legislatures on June
15, 1804.
Text
Electoral College before the Twelfth Amendment
Article
II, Section 1, Clause 3 provided that each elector could cast
two votes. Each elector could not vote for two people inhabiting
the same state as that elector. If exactly one person received a
vote from a
majority of the electors, that
person won the election.
If there was more than one individual who received a vote from a
majority of the electors, 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.
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. 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.
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. It also showed that the House of Representatives could end
up taking multiple ballots before choosing a President.
In addition, it was becoming increasingly apparent that a situation
in which the Vice President had been a defeated electoral opponent
of the President impeded the ability of the two to effectively work
together, and could provide motivation, at least in theory, for a
coup d'état (since the Vice
President would succeed to the office of the President upon the
removal or death of the President). The Twelfth Amendment, in
having the President and Vice President elected as a
ticket, eliminated this possibility.
Electoral College under the Twelfth Amendment
The Twelfth Amendment changed the process whereby a President and a
Vice President are elected. It did not change the composition of
the Electoral College. It has applied to Presidential elections
since 1804.
Under the Twelfth Amendment, each elector must cast distinct votes
for President and Vice President, instead of two votes for
President. Pursuant to the Habitation Clause, no elector may vote
for both candidates of a presidential
ticket if both candidates inhabit the same
state as that elector.
The Twelfth Amendment explicitly precluded those constitutionally
ineligible to be President from being Vice President.
A majority of electoral votes is still required for one to be
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. The Twelfth Amendment requires the House to
choose from the three highest receivers of electoral votes,
compared to five under the original formula.
The Senate chooses the Vice President if no candidate receives a
majority of electoral votes. Its choice is limited to those 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 for the conduct of balloting. Furthermore, the Twelfth
Amendment provides that the votes of "a majority of the whole
number" of Senators are required to arrive at a choice.
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, "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 replaced that provision of the
Twelfth Amendment by changing the date for the commencement of
Presidential terms 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
direct, through legislation, "who shall then act as President" if
there is no President-elect or Vice President-elect by January 20.
It also clarified 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.
Elections since 1804
Henry Clay, who was accused of making
a "corrupt bargain" during the 1824 election
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 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 — 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 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
and there have been no further attempts by a major U.S. party to
adopt the strategy of running regional candidates for national
office since that time.
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 17.
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 (alongside
running-mate Dick Cheney) and Al Gore (alongside 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.
Proposal and ratification
The Congress proposed the Twelfth Amendment on December 9, 1803 and
the following states ratified the amendment:
- North Carolina (December 21, 1803)
- Maryland (December 24, 1803)
- Kentucky (December 27, 1803)
- Ohio (December 30, 1803)
- Pennsylvania (January 5, 1804)
- Vermont (January 30, 1804)
- Virginia (February 3, 1804)
- New York (February 10, 1804)
- New Jersey (February 22, 1804)
- Rhode Island (March 12, 1804)
- South Carolina (May 15, 1804)
- Georgia (May 19, 1804)
- New Hampshire (June 15, 1804)
Ratification was completed on June 15, 1804. The amendment was
subsequently ratified by the following state:
- Tennessee (July 27, 1804)
In addition, the following states rejected the amendment:
- Delaware (January 18, 1804)
- Massachusetts (February 3, 1804)
- Connecticut (May 10, 1804)
See also
Notes
- [1] This prohibition was designed to keep
electors from voting for two "favorite sons" of their respective states.
- See
Article II, Section 1, Clause 5
- The question of how the constitutional eligibility provided by
the Twelfth Amendment and the Twenty-second
Amendment applies to constitutional eligibility of persons
having previously held the office of President, or acted as
President, to the office of Vice President, having not been
adjudicated by the Supreme Court nor
specified by ratification of an additional constitutional
amendment, remains constitutionally inexplicit/unclear.
- The popular vote in 1824 did not consist of all of
the states, since many states chose their electors through their
legislatures instead of by a vote of their people.
- Obscure Texas Case Offers Peek Into Role Of Court
Nominee, The Wall Street Journal, Oct. 7, 2005.
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