In
my prior two posts, I have already explained the two major institutional changes
brought about by the 12th Amendment—which was a response to the Jefferson-Burr electoral
college tie of 1800. These two reforms included: [i] separate ballots for the
electors for President and Vice President; and, [ii] changes to how many candidates
could be considered by the House in a House contingent election and by the Senate
in a Senate contingent election. As explained, the 12th Amendment created new interpretative
challenges and new risks, particularly in regard to ties.
The
12th Amendment also introduced several other, lesser changes that are worth discussing.
Let’s
start with text. The original controlling text in Article II (1788) stated:
The Electors shall
meet in their respective States, and vote by Ballot for two Persons, of whom
one at least shall not be an Inhabitant of the same State with themselves. And
they shall make a List of all the Persons voted for, and of the Number of Votes
for each; which List 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 shall be the
President, if such Number be a Majority of the whole Number of Electors
appointed; and if there be more than one who have such Majority, and have an
equal Number of Votes, then the House of Representatives shall immediately
chuse by Ballot one of them for President; and if no Person have a Majority,
then from the five highest on the List the said House shall in like Manner
chuse the President. But in chusing 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. In every Case,
after the Choice of the President, the Person having the greatest Number of
Votes of the Electors shall be the Vice President. But if there should remain
two or more who have equal Votes, the Senate shall chuse from them by Ballot
the Vice President. (emphasis added)
By
contrast, Amendment XII (1801) states:
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. (emphases added)
I.
Vice Presidential Eligibility. The original Constitution mandates qualifications
for Representatives, Senators, and the President. Eg: citizenship, age, and
inhabitancy/residence. But it did not expressly mandate that the Vice President
have the same qualifications as the President; indeed, it did not expressly mandate
any qualifications for the Vice President. Perhaps some in 1787–1788, thought
it was implicit that the Vice President had the same qualifications as the
President. In any event, the last line of Amendment XII was an effort to
resolve this issue. Post 12th Amendment, Vice Presidents, according to the
standard view of the meaning of “eligibility,” have the same qualifications as
Presidents.
II.
The Vice President’s Electoral College Majority. Under the
original Constitution, the Vice President was the runner up in the electoral college.
In other words, the President had to have a majority of the electors appointed,
but the Vice President did not. A candidate would prevail for Vice President as
long as he had more electoral votes than any other candidate (other than the
prevailing candidate for President). By contrast, under Amendment XII, the Vice
President also needs an electoral college majority.
III.
Senate Contingency Elections. Under the original Constitution, the
Senate had a limited role in choosing the Vice President. The Senate chose the
Vice President if there was a tie for runner up in the electoral college once
the President was chosen (by the electors or by the House). Under Amendment
XII, the Senate chooses the Vice President in circumstances where no candidate
for Vice President carries a majority of the electoral college.
But
that was not the only change. Amendment XII also changed how Senate contingency
elections would be held. Under the original Constitution, the Senate held a
contingency election as it would conduct ordinary business. Such rules
included:
- A simple majority of the members was a quorum; and,
- A majority of those voting would carry.
Furthermore, under the original Constitution, the Senate must vote by “ballot”—which apparently meant a written, secret ballot.
Amendment
XII changed these rules for a Senate contingent election. The new rules
included:
- A quorum was two-thirds of the members; and,
- The necessary majority was a majority of the whole number of senators.
Interestingly, the “ballot” requirement was dropped from the text. (I have often wondered if this was an actual oversight or mistake by the 12th Amendment’s drafters.) In the 1837 Senate contingent election for Vice President, no secret ballot was used. My own view is that these reforms were not particularly wise. Why? Because, among other reasons, a minority of dissenting senators can absent themselves and obstruct a clear senate majority which would otherwise choose the Vice President.
Of course, Amendment XII was ratified to “fix” the problems associated with the contested election of 1800. It was not intended as a cure all for the electoral college’s many other ailments. These include, for example:
- a state’s House delegation, in a House contingent election for President, with an even number of members where the delegation is equally divided;
- appointed electors who do not accept their appointment but are not replaced in a timely manner;
- appointed electors who do not vote at all; and,
- perhaps, most importantly, appointed electors who do not vote as pledged.
It was and it remains an odd system.
Seth
Seth Barrett Tillman, Other 12th Amendment Innovations, New Reform Club (Jan. 19, 2022, 4:10 AM), <https://reformclub.blogspot.com/2022/01/other-12th-amendment-innovations.html>.
See also Seth Barrett Tillman, What the Twelfth Amendment Did and Did Not Do, New Reform Club (Jan. 18, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/what-twelfth-amendment-did-and-did-not.html>; and,
Seth Barrett Tillman, How the Constitution’s Original (or pre-1801) Electoral College Worked, New Reform Club (Jan. 14, 2022, 3:56 AM), <https://reformclub.blogspot.com/2022/01/how-constitutions-original-or-pre-1801.html>.
No comments:
Post a Comment