12th Amendment: Fixing the Electoral College

Because the President and Vice President Really Should Get Along

Vintage print of the first twenty-one Presidents seated together in The White House
Vintage print of the first twenty-one Presidents seated together in The White House.

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The 12th Amendment to the United States Constitution refined the manner in which the President and Vice President of the United States are elected by the Electoral College. Intended to address unforeseen political problems resulting from the presidential elections of 1796 and 1800, the 12th Amendment replaced the procedure originally provided for in Article II, Section 1. The amendment was passed by Congress on December 9, 1803, and ratified by the states on June 15, 1804.

Key Takeaways: 12th Amendment

  • The 12th Amendment to the U.S. Constitution modified the way in which the president and vice president are elected under the Electoral College system.
  • The 12th Amendment requires that the electors of the Electoral College cast separate votes for president and vice president, rather than two votes for president.
  • The 12th Amendment was approved by Congress on December 9, 1803, and ratified by the states, becoming a part of the Constitution on June 15, 1804.

Provisions of the 12th Amendment

Before the 12th Amendment, the electors of the Electoral College did not cast separate votes for president and vice president. Instead, all of the presidential candidates ran together as a group, with the candidate who got the most electoral votes elected president and the runner-up becoming vice president. There was no such thing as a political party’s president-vice president “ticket” as there is today. As the influence of politics in government grew, the problems of this system became clear.

The 12th Amendment requires that each elector cast one vote specifically for president and one vote specifically for vice president, rather than two votes for president. In addition, the electors may not vote for both candidates of a presidential ticket, thus ensuring that candidates of different political parties would never be elected president and vice president. The amendment also prevents persons who are ineligible to serve as president from serving as vice president. The amendment did not change the way in which electoral vote ties or lack of majority are handled: the House of Representatives chooses the president, while the Senate chooses the vice president.

The need for the 12th Amendment is better understood when placed in historical perspective.

Historical Setting of the 12th Amendment

As the delegates to the Constitutional Convention of 1787 convened, the American Revolution’s spirit of unanimity and shared purpose still filled the air—and influenced the debate. In creating the Electoral College system, the Framers specifically sought to eliminate the potentially divisive influence of partisan politics from the electoral process. As a result, the pre-12th Amendment Electoral College system reflected the Framer’s desire to ensure that the president and vice president would be selected from among a group of the nation’s “best men” without the influence of political parties.

Exactly as the Framers intended, the U.S. Constitution never has and probably never will even mention politics or political parties. Before the 12th Amendment, the Electoral College system worked as follows:

  • Each elector of the Electoral College was allowed to vote for any two candidates, at least one of whom was not a resident of the elector’s home state.
  • When voting, the electors did not designate which of the two candidates they had voted for was to be vice president. Instead, they just voted for the two candidates they believed to be the most qualified to serve as president.
  • The candidate getting more 50 percent of the votes became president. The candidate getting the second most votes became vice president.
  • If no candidate got more than 50 percent of the votes, the president was to be selected by the House of Representatives, with the delegation of each state getting one vote. While this gave equal power to both the large and small states, it also made it more likely that the candidate ultimately selected to be president would not be the candidate who had won the majority of the popular vote.
  • In the event of a tie among the candidates who got the second-most votes, the Senate selected the vice president, with each Senator getting one vote.

    Although complicated and broken, this system worked as intended during the nation’s first presidential election in 1788, when George Washington—who detested the idea of political parties—was unanimously elected to the first of his two terms as president, with John Adams serving as the first vice president. In the elections of 1788 and 1792, Washington received 100 percent of both the popular and electoral vote. But, as the end of Washington’s final term drew near in 1796, politics was already creeping back into American hearts and minds.

    Politics Exposes Electoral College Problems

    During his second term as Washington’s vice president, John Adams had associated himself with the Federalist Party, the nation’s first political party. When he was elected president in 1796, Adams did so as a Federalist. However, Adams’ bitter ideological adversary, Thomas Jefferson—an avowed Anti-Federalist and member of the Democratic-Republican Party, having gotten the second-most electoral votes, was elected vice president under the Electoral College system.

    As the turn of the century approached, America’s budding love affair with political parties would soon expose the weaknesses of the original Electoral College system.

    The Election of 1800

    One of the most important events in American history, the election of 1800 marked the first time an incumbent president—one of the Founding Fathers at that—actually lost an election. That president, John Adams, a Federalist, was opposed in his bid for a second term by his Democratic-Republican vice president Thomas Jefferson. Also for the first time, both Adams and Jefferson ran with “running mates” from their respective parties. Federalist Charles Cotesworth Pinckney from South Carolina ran with Adams, while Democratic-Republican Aaron Burr of New York ran with Jefferson.

    When the votes were counted, the people had clearly preferred Jefferson for president, handing him a 61.4 to 38.6 percent victory in the popular vote. However, when the electors of the Electoral College met to cast their all-important votes, things got very complicated. The Federalist Party electors realized that casting their two votes for Adams and Pinckney would cause a tie, and if they both got a majority, the election would go to the House. With this in mind, they cast 65 votes for Adams and 64 votes for Pinckney. Apparently not so aware of this flaw in the system, the Democratic-Republican electors all dutifully cast both of their votes for Jefferson and Burr, creating a 73-73 majority tie forcing the House to decide whether Jefferson or Burr would be elected president.

    In the House, each state delegation would cast one vote, with a candidate needing the votes of a majority of delegations to be elected president. On the first 35 ballots, neither Jefferson nor Burr were able to win a majority, with Federalist Congressmen voting for Burr and all Democratic-Republican Congressmen voting for Jefferson. As this “contingent election” process in the House drug on, the people, thinking they had elected Jefferson, became increasingly unhappy with the Electoral College system. Finally, after some heavy lobbying by Alexander Hamilton, enough Federalists changed their votes to elect Jefferson president on the 36th ballot.

    On March 4, 1801, Jefferson was inaugurated as president. While the election of 1801 set the cherished precedent for the peaceful transfer of power, it also exposed critical problems with the Electoral College system that almost everyone agreed had to be fixed before the next presidential election in 1804.

    Ratification of the 12th Amendment

    In March 1801, just weeks after the election of 1800 had been resolved, the state legislature of New York proposed two constitutional amendments similar to what would become the 12th Amendment. While the amendments eventually failed in the New York legislature, U.S. Senator DeWitt Clinton of New York began discussions on a proposed amendment in the U.S. Congress.

    On December 9, 1803, the 8th Congress approved the 12th Amendment and three days later submitted it to the states for ratification. Since there were seventeen states in the Union at the time, thirteen were needed for ratification. By September 25, 1804, fourteen states had ratified it and State James Madison declared that the 12th Amendment had become a part of the Constitution. The states of Delaware, Connecticut, and Massachusetts rejected the amendment, although Massachusetts would eventually ratify it 157 years later, in 1961. The presidential election of 1804 and all elections since have been conducted according to the provisions of the 12th Amendment.

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