Well, the Twelfth Amendment is a handful. It’s a properly long amendment, one that I highly doubt many Americans, including myself, know a whole lot about.
So, here’s the text of the amendment.
"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. -- 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."
Yup, told ya it was a handful. It took me a while just to read through it, and I’ve read through it quite a few times before pulling it up to write about today. I don’t expect you to read this amendment and understand what’s going on, but I also don’t want to write about it with out at least giving you the original text.
The historical context for this amendment is almost more important than the amendment itself. So, we’ll start there.
The Twelfth Amendment is inextricably tied to the Electoral College. Now, if you want to do a deep dive into the historical context of the Electoral College system, read my article here, but for today, I’m just going to give a brief overview.
The men at the Constitutional Convention were very concerned about the idea of peaceful transition of power. Look at history and you’ll understand why. Most rulers don’t give up their power easily and so most transitions of power are not easy, smooth or bloodless. One of their greatest puzzles the founders had to solve was how to avoid bloody transitions of power. They tried to assuage their own fears by creating an electoral situation that they felt would anger the least number of people and would be considered legitimate to the most number of people.
The founders didn’t want to allow the “people” so much power, so they avoided popular election. However, they didn’t want to leave the election exclusively to the states, nor did they want to leave elections to just Congress. Thus, they created the hybrid system we know as the Electoral College. Electors from every state would vote for an individual to be president, whomever the felt was most qualified. If someone received a majority of the electoral votes, that someone would be president and the runner-up would be vice-president. However, the founders fully anticipated that the electors would rarely select a clear winner every time; in which case, the House of Representatives–with each state having one vote–would choose who should win. (Interesting point: Congress only began meeting on the second year after their election. They wouldn’t meet the entire first year.)
This is the original set up for the Electoral College before the Twelfth Amendment.
And then the election of 1800 happened. Consider this. The election of 1800 was perhaps one of the most important in American and world history because “it represented the first time that an incumbent leader was defeated in an election” (Levinson). This truly does blow my mind when put in historical context.
Here’s this new, baby Republic, reeling from a revolution, a Constitutional Convention that resulted in a patchwork Constitutional meant to appease a litany of states and peoples, and an administration struggling to maintain any legitimacy, and yet, the states and the people, instead of throwing up their hands, calling the whole thing a joke and trying to start over, actually accepted the results of this election and set the tone for the rest of American history. Do you realize how monumental that was?
While the founders and Americans breathed a collective sigh of relief that the election of 1800 went off without a “hitch”, Congress and everyone else involved realized that their system had a major flaw.
See, even though the founders wanted to avoid “parties” and “factions”, the elections still took on a partisan tone. The Democratic-Republicans supported Jefferson and the Federalist Party supported Adams in the election of 1800.
Here’s how it went:
“The tickets in the election were Federalists Adams and Charles C. Pinckney against Democratic-Republicans Jefferson and Burr. The ballots for the electoral college weren’t counted until Feb. 11, 1801, when it was discovered that the election was a tie.
Jefferson and his running mate, Burr, each received 73 electoral votes. Adams received 65 votes and Pinckney received 64. John Jay, who had not even run, received one electoral vote.
The original wording of the Constitution, which didn’t distinguish between electoral votes for president and vice president, led to the problematic outcome. In the event of a tie in the electoral college, the Constitution dictated that the election would be decided by the House of Representatives. So Jefferson and Burr, who had been running mates, became rivals.
The Federalists, who still controlled the lame-duck Congress, threw their support behind Burr in an effort to defeat Jefferson. While Burr publicly expressed his loyalty to Jefferson, he worked to win the election in the House. Hamilton, who detested Burr and considered Jefferson a safer choice for president, wrote letters and used all his influence with the Federalists to thwart Burr.
The election in the House of Representatives began on Feb. 17 in the unfinished Capitol building in Washington, D.C. The voting went on for several days, and after 36 ballots the tie was finally broken. Jefferson was declared the winner and Burr was named the vice president.”Thoughtco.com
And so, there you have it. The fatal Constitutional flaw in Article 11 of the Constitution had to be remedied. Thus, the Twelfth Amendment. Remember, Madison and all the original constructors of the Constitution knew that the Constitution was imperfect and hoped that time would help them see its flaws in order to remedy them. This situation was case in point.
What It Does
So, what does the Twelfth Amendment actually do? It remedies a flaw.
Put simply: “electors would in the future continue to cast two votes (and one of them, as before, would have to be for a non-native of the elector’s home state), but, crucially, one of the two votes would explicitly be to fill the presidency, while the other designated who should become vice president. Never again could presidential candidates and their running mates face the embarrassing kind of tie vote that forced the House to choose between Jefferson and Burr” (Levinson).
The Eighth Congress introduced the Twelfth Amendment on December 9, 1803 and submitted it to the states three days later. The states formally ratified it by September 25th, 1804.
So, what did this amendment do again? Well, it did this: the House decides who’s elected president if there’s a tie/no one with the majority and the Senate decides this for the Vice-President. The President and VP are in two different election races so that the Jefferson/Burr situation can never happen again.
How does this work today though? It’s pretty much a package deal for Americans who go to the polls. Yes, technically, for citizens voting, we vote for one party’s package deal or the other party’s package deal. However, in reality we’re voting for the electors in our state who have pledged to vote for the party’s candidates and when these electors vote, they vote on two separate ballots for president and vice-president. This is a direct result of the Twelfth Amendment. One caveat, the Constitution does not require that the votes be bundled, so there are many potential ways this whole situation could play out.
Read Levison’s take on this:
"One possible reform is to adopt the practice in many states and “unbundle” the election of our two top executive branch officials. That is, just as in many states candidates for governor and lieutenant governor run entirely separate campaigns, meaning that sometimes the governor is from one party and the lieutenant governor from another, one could imagine separate elections for the president and vice president. Even within the electoral college, we could imagine voting for two slates of electors, one charged with choosing the president, the other picking the vice president. Most of the time, of course, voters would pick the slates of the same political party. But one can imagine that at least on occasion voters might be so put off by the vice presidential candidate that they would “split” their ticket. That very possibility might serve to discipline presidential candidates more than is now the case, especially because candidates who win the presidential nomination today basically exercise unlimited discretion in choosing their running mates. This was not the case before the 20th century, when political conventions often exercised real choice in picking both candidates."
I hope you’ve noticed the similarities between the Eleventh Amendment and Twelfth Amendment. What was the purpose of both of these amendments? To right a flaw in the original Constitution—fundamentally to make the Constitution stronger by clearing up any part of it that could be misconstrued or used in future generations to give the government more power. Neither of these amendments strengthened the power of the federal government, but instead, fortified the power of the Constitution against the the federal government. Granted, both of these amendments were written primarily by the same men who wrote the original Constitution, so they certainly knew what they’d wanted and how to make sure they preserved their original intentions while adapting to what the practical application of the Constitution had taught them. But, boy did they reverence and respect this Constitution and with these amendments, fought to preserve its authority and dignity.
Let’s remember this as we progress through these amendments because not every amendment added was added with the goal of preserving the Constitution’s authority and dignity. But we better make sure any amendment we add today does.
The Liberty Belle