Twelfth Amendment is Ratified

Date September 25, 1804

The Twelfth Amendment to the U.S. Constitution simplified the procedures for electing the president and vice president and helped to avert repetitions of the potentially disruptive confusion that had occurred in the previous two presidential elections.

Locale Washington, D.C.

Key Figures

• John Adams (1735-1826), president of the United States, 1797-1801
• Aaron Burr (1756-1836), third vice president of the United States, 1801-1805
• Thomas Jefferson (1743-1826), president of the United States, 1801-1809
• James Madison (1751-1836), secretary of state in 1804 and later president, 1809-1817
• Thomas Pinckney (1750-1828), unsuccessful candidate for vice president in 1796
• John Taylor (1753-1824), senator from Virginia who advocated the Twelfth Amendment

Summary of Event

The Twelfth Amendment to the U.S. Constitution was necessitated by a basic flaw in the original document. Article II, section 1, clause 3 of the Constitution had established a complicated and confusing procedure for electing presidents and vice presidents. That procedure required elections to be determined by votes of an electoral college made up of electors from each of the states, each of which was entitled to the same number of electors as it had representatives in Congress. Appointed in whatever manner the individual state legislatures chose, the electors were to vote for two persons, presumably one for president and the other for vice president; however, the ballots were not so labeled. The candidate receiving the highest number of votes—provided that the number constitute a majority of the electoral votes—was elected president. The candidate with the next highest number of votes was elected vice president.

In elections contested by more than two major candidates for either the presidency or the vice presidency, it was possible that none of the candidates would receive a clear majority of the electoral vote. In such situations, the House of Representatives was to elect the president from among the five candidates receiving the most votes. Two-thirds of the members constituted a quorum for this purpose, and each state was to have a single vote—a measure designed to ensure that the smaller states had equal weight. A simple majority vote in the House was required for election. If the same situation occurred in the vice presidential election, the Senate was to elect the vice president from the top two vote-getters by a majority vote. One vote was to be allowed for each senator, and a quorum was to be two-thirds of the Senate. If the president-elect were to die or become disabled between the time of the popular election and the determination of the electoral vote, the vice president-elect was to become president. This procedure was similar to that applying to presidents who died during their terms of office.

When the Constitution was written, it was presumed that many worthy candidates would receive electoral votes and that seldom, if ever, would any candidate receive a majority of the electoral vote. Thus, the electoral college was, in effect, intended to serve only as a nominating procedure to provide up to five good candidates for consideration by the House of Representatives. The Framers of the Constitution did not anticipate the development of political parties, which began forming in the 1790’s. The election of 1796 found Federalist John Adams of Massachusetts opposed by Republican Thomas Jefferson of Virginia. Adams won the election, but his running mate, Thomas Pinckney of South Carolina, finished in third place, nine votes behind Jefferson, so Jefferson became vice president. That unusual election resulted in a situation in which rival presidential candidates representing different political parties were forced to serve four years together as president and vice president.

A different, but equally awkward, result came out of the electoral balloting in the 1800 presidential election. In that contest, Jefferson and his vice presidential running mate, Aaron Burr of New York, received the same number of votes. This election went into the House of Representatives, where Federalist opposition to Jefferson was strong. Although it was common knowledge that the electors who voted for Jefferson and Burr intended to place Jefferson in the top position, many die-hard Federalists were determined to thwart their intentions by putting Burr into the presidency. Moderate Federalists, influenced by Burr’s home-state rival Alexander Hamilton, finally tipped the scales in favor of Jefferson. In the prolonged voting that took place in the House of Representatives, Jefferson was finally elected on the thirty-sixth ballot on a date dangerously close to inauguration day.

The odd results of the elections of 1796 and 1800 brought forth a demand for a fundamental change in the electoral system. Congressman John Taylor and other Jeffersonian Republicans prepared a series of resolutions suggesting an appropriate amendment to the Constitution. Their resolutions were introduced into Congress, where support from several states was immediately evident.

The only major objection to changes in the electoral college came from smaller states and from the Federalists. Representatives from the smaller states feared that their states’ role in the presidential elections might be diminished if the electoral college were abandoned. The Federalists merely hoped to disrupt or confuse the election of 1804. After much debate, agreement was finally reached in Congress in December of 1803. An amendment was written and sent to the states for ratification. Within a year, the necessary number of states, thirteen out of seventeen, had ratified the amendment. On September 25, 1804, Secretary of State James Madison announced the adoption of the Twelfth Amendment in time for the election of 1804.

Significance

Although the Twelfth Amendment did not abolish the electoral college or radically change the method of electing the president and vice president, it did remedy some basic defects. Separate ballots were provided for the election of president and vice president, thus preventing the bizarre result of 1796. Provision was also made for the vice president to take over as acting president if the House should delay too long in selecting a president—something that almost occurred after the election of 1800.

In situtations in which no candidate received a majority vote in the electoral college, the House of Representatives was to choose a president from the three candidates who received the most votes, rather than from among five. Equality among the states was maintained when presidential or vice presidential elections went into the House or the Senate. Since then, three presidents have been elected despite receiving fewer popular votes than their opponents. In the first instance, in 1876, Rutherford B. Hayes assumed the presidency after an election so close that ballots from at least four states were in dispute. A special commission was set up to decide the outcome. The second time, in 1888, Grover Cleveland had a majority of the vote but lost the presidency to Benjamin Harrison. The third instance occurred in 2000, when the U.S. Supreme Court intervened in favor of Republican candidate George W. Bush before charges of voting irregularities in Florida could be resolved.

Since the early nineteenth century, discussions about amending the Twelfth Amendment to prevent candidates who receive majority popular votes from losing the electoral vote have periodically arisen. The most common proposal is to have the electoral vote be counted in proportion to the popular vote. For example, if there were two candidates for president and a state had ten electoral votes, the candidate receiving 60 percent of the popular vote in the state would receive six electoral votes, and the candidate receiving 40 percent of the popular vote would receive four electoral votes.

Bibliography

Dershowitz, Alan M. Supreme Injustice: How the High Court Hijacked Election 2000. New York: Oxford University Press, 2001. Critical analysis by a distinguished legal authority on the Supreme Court’s role in the 2000 presidential election, with close attention to the constitutional basis of U.S. election law.

Hockett, Homer C. The Constitutional History of the United States. Vol. 1. New York: Macmillan, 1939. Contains pertinent information regarding the demand for and the adoption of the Twelfth Amendment.

Holder, Angela Roddey. The Meaning of the Constitution. New York: Barron’s, 1987. Provides concise, comprehensive explanations of the significance of the words and clauses of the Constitution. Includes a good working bibliography.

Kuroda, Tadahisa. The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804. Westport, Conn.: Greenwood Press, 1994. Outlines the election history of the United States and argues the need for a change in the electoral college.

Luttbeg, Norman R. American Electoral Behavior, 1952-1992. 2d ed. Itasca, Ill.: F. E. Peacock, 1995. Contrasts more recent electoral behavior with past electoral behavior. Includes some discussion of a possible amendment to the Twelfth Amendment.

Posner, Richard A. Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts. Princeton, N.J.: Princeton University Press, 2001. Study by a legal scholar and federal judge of the Constitution and U.S. election law, with special attention on the 2000 presidential election.

Roseboom, Eugene H. A Short History of Presidential Elections. New York: Collier Books, 1967. Provides a brief account of the presidential elections from George Washington to Lyndon Johnson and explains the need for the Twelfth Amendment.

Rule, Wilma, and Joseph Zimmerman. Electoral Systems in Comparative Perspective: Their Impact on Women and Minorities. Westport, Conn.: Greenwood Press, 1994. Discusses elections and cross-cultural studies of the need for change.

Wright, Russell O. Presidential Elections in the United States: A Statistical History, 1860-1992. Jefferson, N.C.: McFarland, 1995. Discusses the history of the elections process and provides some interesting statistics.