Twelfth Amendment: Changes to the Electoral College

The Electoral College has become the subject of a lot of debate in recent years. But many people don't know that the way the Electoral College currently works is thanks to a constitutional amendment - and that the process used to be even messier.

During the election of 1800, the original voting process in the Electoral College forced the House of Representatives to choose the president and vice president. Not only that, the candidates they had to choose from were originally running mates, Thomas Jefferson and Aaron Burr.

The tie vote that led to this predicament exposed serious problems with the Electoral College. It ultimately prompted Congress to fix the problem with the Twelfth Amendment.

This article provides an in-depth look at the Twelfth Amendment. It begins with its text and meaning. It then provides context as to why Congress proposed the change to the Electoral College.

What the Twelfth Amendment Says

The Twelfth Amendment to the Constitution of the United States reads as follows:

"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 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."

*Note: The Twentieth Amendment superseded the bracketed section of the Twelfth Amendment.

What Did the Twelfth Amendment Do?

Before the Twelfth Amendment's ratification, electors didn't specifically vote on who they wanted for president and vice president. Instead, they chose their top two candidates for president. The candidate who received the most votes became president. The person receiving the second-highest number of votes became the vice president.

The Twelfth Amendment amended the process of casting electoral votes. Now, electors have two separate ballots. They cast votes for the president on one ballot and the vice president on the other.

The Twelfth Amendment also changed the process for contingent elections in Congress held in the event of a tie vote. Under the original rule, the House would choose the president and vice president among the top five vote-getters. The Twelfth Amendment changed it so that the House selected the president from among the top three vote-getters. The Senate will break a tie vote for the vice presidency between the top two vote-getters.

Historical Background of the Twelfth Amendment

Article II, Section 1 of the U.S. Constitution established the Electoral College. The Twelfth Amendment, ratified in 1804, changed the process to one we still use today.

The Framers established the Electoral College as a compromise between choosing a president via popular vote and letting Congress elect the president.

Before the Twelfth Amendment's ratification, the Electoral College's process was as follows:

• Electors would cast votes for two people. They did not differentiate their votes between a presidential or vice presidential candidate. Instead, they voted for the two candidates they believed were most qualified for the presidency and vice presidency.
• The candidate who received the most votes became president (assuming they received a majority of the electoral votes). The person who received the second-most votes became the vice president.
• If a candidate failed to secure a majority of the electoral votes, the Constitution provided that the House of Representatives would vote for the president. Each state's delegation would get one vote. Additionally, if two candidates received the same number of electoral votes, the House would choose between the candidates.

The Electoral College worked as intended during the first two elections in American history. George Washington won all 69 electoral votes during the first presidential election and won his reelection campaign.

In 1796, John Adams defeated Thomas Jefferson by three electoral votes. As a result, Adams became president, and Jefferson, his political rival, became his vice president.

The 1796 election and the drama leading up to it set the stage for one of the most critical elections in American history in 1800.

The Election of 1800

The election of 1800 was a rematch between Adams and Jefferson. Adams, the incumbent president, chose Charles Pinckney as his running mate. Jefferson, who was Adams' vice president, chose Aaron Burr as his running mate.

Just 12 years after the Constitution's ratification, political parties already held significant power in American politics. The Federalists supported Adams and Pinckney, while the Democratic-Republicans supported Jefferson and Burr.

Given the existing voting structure, the Federalist electors concluded that they would not cast all their votes for Adams and Pinckney. If they did, the two would tie, and the House would choose the president. Adams received 65 electoral votes, and Pinckney received 64. John Jay received one electoral vote from a Federalist elector.

The Democractic-Republicans chose to cast all their votes for Jefferson and Burr. Each received 73 electoral votes. This created a tie majority vote, and the House held a contingent election between Jefferson and Burr to break the deadlock.

Most Federalist representatives supported Burr, and all the Democractic-Republic representatives supported Jefferson. After 35 tie elections in the House, the representatives elected Jefferson as president and Burr as vice president following its 36th ballot.

The runoff election exposed the problems with the original Electoral College voting procedure. Because each state had one vote in the runoff election, it leveled the playing field regarding each state's voting power. For example, Delaware's sole representative, a Federalist named James Bayard, had the same voting power as Virginia, the most populated state in the country.

In addition, because electors could not distinguish between who they wanted as president and vice president, it sometimes resulted in political rivals becoming president and vice president, as it had in 1796. Although Burr and Jefferson were running mates, they, too, became political rivals before the end of the 1800 election.

Proposal and Ratification of the 12th Amendment

Following the election of 1800, Congress set its sights on amending the Constitution's election procedure. Legislators debated the splitting of electoral votes between presidential and vice presidential nominees. Some members of Congress felt that the proposed procedure would result in less capable vice presidents than the original procedure.

Nonetheless, Congress submitted the Twelfth Amendment to the states in December 1803. In September 1804, Secretary of State James Madison declared that enough state legislatures had ratified it, and it became part of the Constitution. The election of 1804 and all subsequent elections were conducted pursuant to the Twelfth Amendment.

Developments in Presidential Elections After the Twelfth Amendment

The Twelfth Amendment did not solve every issue regarding elections. Several subsequent elections led to further development of the presidential selection process. This section describes several notable elections and events involving the Twelfth Amendment.

The Election of 1824

The only other time the House had to select the presidential candidate was during the election of 1824. No candidate received a majority of electoral votes, with the results of the election as follows:

• Andrew Jackson - 99 votes
• John Quincy Adams - 84 votes
• William Crawford - 41 votes
• Henry Clay - 37 votes

Because of the Twelfth Amendment, the House could only choose between the top three vote-getters. The House selected John Quincy Adams as president, even though Jackson received more electoral votes and had also won the popular vote.

The Election of 1876

The 1876 election was between Democrat Samuel Linden and Republican Rutherford B. Hayes. At the end of the election, the results of three states (Louisiana, Florida, and South Carolina) were unclear.

Both nominees claimed they won the states. Eventually, two days before inauguration day, Rutherford B. Hayes was declared the winner by a single electoral vote.

As a result of the disputed election, Congress passed a federal law requiring state governors to certify their state's vote under seal. If the governor did not certify the vote, it would not be counted unless both the House and Senate concurred.

The Twentieth Amendment

In 1935, the states ratified the Twentieth Amendment, which concerns presidential succession and superseded part of the Twelfth Amendment's Clause 3.

Specifically, the Twentieth Amendment changed the president's inauguration date from March 4 to January 20 in the year following an election.

President George W. Bush and Vice President Dick Cheney

Presidential nominee George W. Bush selected Dick Cheney as his running mate during the 2000 election. Bush was the Governor of Texas, and Cheney had lived in Texas for five years prior to the election.

Bush won the 2000 election against Al Gore by a slim margin, and a challenge arose regarding the election results. Bush and Cheney had won the state of Texas, garnering 32 electoral votes.

Three Texas voters challenged the state's electors to determine whether they violated the Twelfth Amendment's habitation clause. The clause prevents electors from voting for nominees from their same state. Bush, as the governor, was a Texas citizen. Cheney, meanwhile, had lived in Texas for five years.

However, several months before the election, Cheney had changed his voter registration and driver's license to Wyoming. Cheney was born and raised in Wyoming, had represented the state in Congress for many years, and continuously maintained a residence there.

The Fifth Circuit Court of Appeals ultimately dismissed the voters' challenge.

Chiafalo v. Washington (2020)

In Chiafalo v. Washington (2020), the Court ruled that states can penalize electors who vote for a presidential nominee who did not win the state's popular vote.

Washington state law requires each political party to nominate presidential electors. The nominees must pledge that they will vote for their party's candidate. The law provides that if an elector takes the pledge and then casts their vote for a different candidate, the elector may have to pay up to a $1,000 fine.

During the 2016 presidential election, Democratic candidate Hillary Clinton and her running mate, Tim Kaine, won Washington's popular vote. Chiafolo and others were the Democratic party's electors in Washington. Instead of casting their votes for Clinton and Kaine, Chiafolo and the other electors voted for Colin Powell for president and a different candidate for vice president.

The state fined Chiafolo and the other rogue electors $1,000 for violating the state law. They challenged the law, claiming it violated their First Amendment rights.

In a unanimous decision, the Supreme Court ruled that the Twelfth Amendment does not prohibit a state from penalizing rogue electors. The Court examined the history of voting in the United States and determined that state electors must vote for the candidate who won the state's popular vote.