The Twelfth Amendment (Amendment XII) to the United States Constitution provides the procedure for electing the president and vice president. It replaced the procedure in Article II, Section 1, Clause 3, under which the Electoral College originally functioned. The amendment was proposed by Congress on December 9, 1803, and was ratified by the requisite three-quarters of state legislatures on June 15, 1804. The new rules took effect for the 1804 presidential election and have governed all subsequent presidential elections.
Initially under the Constitution, each member of the Electoral College cast two electoral votes, with no distinction between electoral votes for president or for vice president. The presidential candidate receiving the greatest number of votes—provided that number was at least a majority of the electors—was elected president, while the presidential candidate receiving the second-most votes was elected vice president. In cases where no individual won the votes of a majority of the electors, as well as in cases where multiple persons won the votes of a majority but tied for the most votes, the House of Representatives would hold a contingent election to select the president. In cases where multiple candidates tied for the second-most votes, the Senate would hold a contingent election to select the vice president. The first four presidential elections were conducted under these rules.
The original system allowed the 1796 and 1800 presidential elections to elect a president and vice-president who were political opponents, constantly acting at cross-purposes. This was the case as John Adams (Federalist) had to deal with Thomas Jefferson (Democratic-Republican) as his vice president. There was also the danger of two or more candidates tying in the electoral college. This was the case in 1800 when Jefferson and Aaron Burr, though both Anti-Federalist, were indeed tied in the college. This spurred legislators to amend the presidential election process to require each member of the Electoral College to cast one electoral vote for president and one electoral vote for vice president. Under the new rules, a contingent election is still held by the House of Representatives if no candidate wins the presidential electoral vote of a majority of the electors, but there is no longer any possibility of multiple candidates winning presidential electoral votes from a majority of electors, and it is provided that no individual constitutionally ineligible to the office of president would be eligible to serve as vice president.
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Background
Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3, each elector cast two electoral votes, with no distinction made between electoral votes for president and electoral votes for vice president. The two people chosen by the elector could not both inhabit the same state as that elector. This prohibition was designed to keep electors from voting for two "favorite sons" of their respective states.The Electoral College—Origin and History Dave Leip's Atlas of U.S. Presidential Elections The person receiving the greatest number of votes, provided that number constituted a majority of the electors, was elected president.
There were two possible scenarios in which the House of Representatives would need to hold a contingent election to select the president. If there were more than one individual who received the same number of votes, and such number equaled a majority of the electors, the House would choose one of them to be president. If no individual had a majority, then the House would choose from the five individuals with the greatest number of electoral votes. In both sets of circumstances, each state delegation had one () vote. A candidate was required to receive an absolute majority, more than half of the total number of states, in order to be chosen as president.
Selecting the vice president was a simpler process. Whichever candidate received the second greatest number of votes for president became vice president. The vice president, unlike the president, was not required to receive votes from a majority of the electors. In the event of a tie for second place, the Senate would hold a contingent election to select the vice president from those tied, with each senator casting one vote. A candidate was required to receive an absolute majority, more than half of the total Senate membership, in order to be chosen as vice president.
The original electoral system worked adequately for the first two presidential elections because on both occasions George Washington was the unanimous choice of the electors for president; the only real contest was the election for vice president for which an overall majority was not required. George Washington's decision not to seek a third term and the emergence of partisan political activity exposed problems with the original procedure.
In the 1796 election, John Adams, the Federalist Party presidential candidate, received votes from a majority of electors. However, the Federalist electors scattered their second votes, resulting in the Democratic–Republican Party presidential candidate, Thomas Jefferson, receiving the second highest number of electoral votes and thus being elected vice president. It soon became apparent that having a vice president and a president unwilling to work together effectively was going to be a more significant problem than was originally realized. The most significant problem was that with the French Revolutionary Wars raging in Europe, it was immediately apparent that President Adams was going to pursue a pro-British foreign policy, much to the disgust of the strongly pro-French Vice President Jefferson.
On January 6, 1797, Federalist Representative William L. Smith of South Carolina responded to the 1796 result by presenting a resolution on the floor of the House of Representatives for an amendment to the Constitution requiring each elector to cast one vote for president and another for vice president. However, no action was taken on his proposal.
This set the stage for a crisis. In the 1800 election, both major parties attempted to prevent the problem that arose in 1796 by nominating separate presidential and vice presidential candidates on a party ticket. However, there was no way for the electors to distinguish between the two offices when they cast their votes, so if all the electors voted for their party tickets, the election would end in a tie between the two candidates from the most popular ticket.
The Democratic-Republicans, who had nominated Jefferson for president and Aaron Burr for vice president, managed to secure a majority of pledged electors. But the electoral margin was so slim that there was little room for error if the Democratic–Republicans were to avoid repeating the Federalists' miscues of 1796. Given the technical limitations of 18th-century communications, Democratic–Republican electors in each state were left to assume that an elector in some other state was the one responsible for casting the one abstention necessary to ensure the election of Burr to the vice presidency. In the event, all the Democratic–Republicans electors were so reluctant to be responsible for causing outgoing President Adams to be elected as vice president that every Democratic–Republican elector cast a vote for both Jefferson and Burr, resulting in a tie. This problem was termed later the Burr dilemma.
Consequently, a contingent presidential election was held in the House of Representatives. Federalist-controlled state delegations cast their votes for Burr in an effort to prevent Jefferson from becoming president. Neither Burr nor Jefferson was able to win on the first 35 ballots. With help from Alexander Hamilton, the gridlock was finally broken on the 36th ballot and Jefferson was elected president on February 17, 1801. This prolonged contingent election, combined with the increasing Democratic–Republican majorities in both the House and the Senate, set the stage for a constitutional amendment to alter this flawed system.
Adoption Journey to Congress In March 1801, weeks after the election of 1800 was resolved, two amendments were proposed in the New York State Legislature that would form the skeleton of the Twelfth Amendment. Governor John Jay submitted an amendment to the state legislature that would require a district election of electors in each state. Assemblyman Jedediah Peck submitted an amendment to adopt designations for the votes for president and vice president. The two amendments were not considered until early 1802 because the state legislature took a break for the summer and winter. New York state senator DeWitt Clinton moved for the adoption of the amendment in January 1802. Shortly thereafter, Clinton won a vacant seat in the U.S. Senate, where he was instrumental in bringing the designation amendment to Congress. The process continued in New York on February 15 when Representative Benjamin Walker of New York proposed the designation and district election amendments to the House. Debate on the amendments began in May. The Democratic-Republicans wanted to decide on the amendment quickly, but the Federalists argued that the ideas needed more time than the current session allowed. Federalist Samuel W. Dana of Connecticut wanted to examine the necessity of a vice president. The amendment ultimately failed in the New York State Senate, but DeWitt Clinton brought the amendment discussion to the House of Representatives.
The Democratic–Republican majority decided to wait for the 8th Congress to debate the amendment as this would allow them a better chance of meeting the two-thirds votes requirement for needed to adopt a resolution for a proposed Constitutional amendment.
Congressional debate House of Representatives In 1803, on its first day, the 8th Congress considered the designation amendment. The first formulation of the amendment had the five highest electoral vote earners on the ballot in the House if no one candidate had a majority of the electoral votes. Democratic–Republican John Clopton of Virginia, the largest state in the Union, argued that having five names on the list for a contingency election took the power from the people, so he proposed that there be only two names on the list. On October 20, the House appointed a seventeen-member committee (one Representative from each state) to fine-tune the amendment.
The original proposal starting in the New York State Legislature would have, along with designation, put forward the idea of the district election of electors that Treasury Secretary Gallatin had supported. Shortly after the committee was formed, Federalist Benjamin Huger attempted to add a provision regarding district elections to the proposed amendment, but the committee ignored him.
The committee then submitted an updated version of the designation amendment to the House on October 23 that changed the number of candidates in a contingency election from five to three and allowed the Senate to choose the vice president if there were a tie in that race. Small Federalist states disliked the change from five to three because it made it far less likely that a small-state candidate would make it to a contingency election. Huger and New York Federalist Gaylord Griswold argued that the Constitution was a compromise between large and small states and the method chosen by the Framers is supposed to check the influence of the larger states. Huger even asserted that the Constitution itself was not a union of people, but a union of large and small states in order to justify the original framework for electing the president. Designation, argued Griswold and Huger, would violate the spirit of the Constitution by taking away a check on the power of the large states.