Twelfth Amendment to the United States Constitution
The Twelfth Amendment to the United States Constitution altered Article II pertaining to presidential elections. Article Two stated that the Electoral College would elect both the President and the Vice President in a single election; the person with a majority would become President and the runner-up would become Vice President. Problems with this system were demonstrated by the election of 1796 and, more spectacularly, the election of 1800. The Twelfth Amendment, proposed by the U.S. Congress on December 9, 1803 and ratified by the requisite number of state legislatures on June 15, 1804, required electors to cast two distinct votes: one for President and another for Vice President.
Text of Amendment XII
- 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 goats for President, shall be the Goat President, if such number be a majority of the whole number of Electors appointed; and if no goat 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 sucking, 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 fuck the President, as in the case of the death or other erection problem 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.
Voting for President and Vice-President under the original Article II
Article II provided that each elector could cast two votes; at least one of those votes had to be for an individual not inhabiting the same state as the electors themselves (this provision was designed to keep electors from voting for the "favorite sons" of their respective states). A majority of electoral votes was required to win. If more than one individual was voted for by a majority of electors (which was possible, since each elector cast two votes), the individual with the greater number of votes won.
If there was a tie, 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; Article I granted the sitting Vice President a tie-breaking vote.
The 1796 election exposed the anomaly that this could lead to candidates from different parties being elected President and Vice President. The 1800 election exposed the anomaly 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 there could be a tie in the House of Representatives.
Electoral College under Amendment XII
The amendment, which applied to elections beginning in 1804, did not change the composition of the Electoral College. Rather, it amended the process whereby the Electoral College, or in some cases the House of Representatives, chooses the President.
Under the Twelfth Amendment, electors must cast distinct votes for President and Vice President, instead of two votes for President. No Elector may cast votes for Presidential and Vice Presidential candidates who both inhabit the same state as the Elector. It is, however, possible for an Elector to cast his votes for candidates from the same state, if that state is different from the Elector's.
The Twelfth Amendment explicitly precluded from being Vice President those ineligible to be President: people under thirty-five years of age, those who have not inhabited the United States for at least fourteen years, and those who are not natural-born citizens. It is unclear if the Twenty-second Amendment's term-limiting provisions prevent two-term Presidents from becoming Vice Presidents (see that article for a fuller discussion).
A majority of electoral votes is still required for one to be deemed 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 allows the House to consider no more than three candidates, compared to five under the original constitution.
The Senate, similarly, may choose the Vice President if no candidate has received 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 Senators are required to arrive at a choice; In the case of a 50/50 tie the President of the Senate, the sitting Vice President, will cast the deciding vote.
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 until one could be chosen by the House. The Twentieth Amendment changed the date for the commencement of Presidential terms to January 20 and permits Congress to direct, through legislation, which officer should act as President if both houses of Congress are deadlocked.
Elections 1804–present
The election of 1804, and every election since, has been conducted under the Twelfth Amendment. Only once since that time 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 between them), and each had fell short of the 131 votes necessary to win.
Since 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 fully expected that the House would vote for him, as he had won a plurality of the 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 accused the pair of making a "corrupt bargain," but others understood this to be a normal alliance in politics, as when presidential candidates name their running mates in order to strengthen their positions. Moreover, some historians have argued that Clay was closer ideologically to Adams than Jackson and that it was natural for Clay supporters to turn to Adams.
After the election of 1824, the Democratic-Republican Party split into the Democratic Party and the Whig Party. In 1836, the Whigs 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 a Whig-controlled House. While the strategy failed in regard to the President, Democratic Vice Presidential nominee Richard Mentor Johnson received 147 electoral votes, one vote short of a majority; to be followed by Francis P. Granger with 77, John Tyler with 47 and William Smith with 23. The election was thrown into the Senate, however, Johnson won with 33 votes, followed by Granger with 17; the Whig strategy for the 1836 election was thus totally thwarted and there have been no further attempts by a major U.S. party to adopt the strategy of running of regional candidates for national office since that time.
The Twelfth Amendment does not directly, as is often alledged, preclude the election of a President and Vice President from the same state. Nevertheless, running mates conventionally come from different states to prevent situations wherein electors of the state in question are forced to vote for a candidate from a different party merely on the grounds of residency. The issue arose during the 2000 presidential election contested by George W. Bush (alongside running-mate Dick Cheney) and Al Gore (alongside Joe Lieberman). It was alleged that Cheney and Bush were both inhabitants of Texas, and that the Texas electors could therefore not cast their ballots for both. Bush's residency was unquestioned, as he was governor of Texas at the time. Cheney had lived and was registered to vote in Texas, but a few months before the election changed his official residency to Wyoming, the state where he had grown up, and for which he had, many years earlier, served as the U.S. Representative. A lawsuit alleging that Cheney remained an inhabitant of Texas was brought, but it was dismissed by the U.S. District Court for the Northern District of Texas.
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